Aggravating Circumstance of Former Spouse: An Offence Linked to the Common Child is Punished More Severely

Imagine the scene: in Sainte-Savine, in the Aube, a separated father picks up his son for a weekend. But instead of bringing him back on Sunday evening, he disappears with him for three days. The mother files a complaint. The father is prosecuted for child abduction. But should the court apply the aggravating circumstance of an offence committed by a former spouse? How far does the enhanced protection provided for by law extend?

The Court of Cassation answered this question on 2 May 2024 in a landmark judgment. And the answer is clear: as soon as the facts are linked to the former relationship — even if they concern only the common child — the aggravating circumstance applies. For owners, tenants or property professionals, this decision goes beyond the criminal context: it concerns all post-separation conflicts where the child becomes an issue.

But what exactly does this change for you, separated parents who rent a property in Romilly-sur-Seine or manage a family succession in Troyes? I will explain everything, step by step.

The facts: a story like many others

Mr. X and Mrs. Y separated after several years of living together. They have a child, Lucas, aged 6. Custody is organised: one week with the mother in Romilly-sur-Seine, one week with the father in Troyes. But one day, the father does not bring Lucas back. He takes him to his new partner's home, without informing the mother. Worried, she files a complaint.

The father is arrested three days later. He explains that he wanted to "protect" his son from a situation he considered dangerous at the mother's home. But for the justice system, this is child abduction (an offence under Article 227-8 of the Criminal Code). The prosecution requests the aggravating circumstance of an offence committed by a former spouse (Article 132-80 of the Criminal Code), which increases the maximum sentence from 3 to 5 years' imprisonment.

Before the Lyon Court of Appeal, the judges set aside this aggravating circumstance. Their reasoning: the facts were not committed "because of the former relationship", but only because of the child's fate. The father did not act out of revenge or animosity, but out of an alleged desire to protect. The Court of Appeal reclassified the facts as "an unsuccessful attempt at child abduction".

But the public prosecutor appealed to the Court of Cassation. And the Criminal Chamber quashed the decision. For them, as soon as the facts relate to the care of the common child, they are necessarily committed "because of" the former relationship. The motive shown by the parent is irrelevant. The case was referred back to the Lyon Court of Appeal, differently composed.

The reasoning of the court — analysed

Article 132-80 of the Criminal Code provides: "The commission of an offence by a former spouse, civil partner or partner bound by a civil solidarity pact constitutes an aggravating circumstance, provided that this offence is committed because of the relationships that existed between the perpetrator and the victim."

This provision, introduced by the Law of 4 August 2014 on real equality between women and men, aims to protect victims of domestic violence after separation. Because the danger does not end with the break-up. But how should "because of the relationships that existed" be interpreted?

The Court of Appeal had a restrictive reading: there must be a direct causal link between the offence and the past relationship. If the offence only concerns the child, without personal animosity, the aggravating circumstance does not apply. In other words, the motive must be "personal" against the ex-partner.

The Court of Cassation adopts a broad interpretation. For them, the care of the common child is inseparable from the former relationship. Separated parents are no longer a couple, but they remain linked by the child. Any offence concerning that child, whether motivated by protection, revenge or otherwise, is committed "because of" the former relationship. It is a quasi-irrebuttable presumption.

In clear terms, the mere fact that the facts occur between ex-partners and concern their common child is sufficient to trigger the aggravating circumstance. What few people know: this decision is part of a broader jurisprudential trend aimed at strengthening the protection of victims of domestic violence, including after separation. It is a confirmation and a hardening of the Court's position, which had already ruled similarly in a judgment of 20 March 2019 (No. 18-84.627).

What this changes for you — concretely

This decision has direct implications for all separated parents, but also for property professionals who manage rentals or sales between ex-partners.

If you are a separated parent: Be careful, any conflict about the child — refusal to return them, unauthorised travel, violence during exchanges — can be classified with the aggravating circumstance. The sentence faced is heavier. For example, for simple child abduction, the maximum sentence is 3 years and a €45,000 fine. With the aggravating circumstance, it increases to 5 years and €75,000. In Romilly-sur-Seine, a father who does not bring his son back after a visit can have his sentence doubled, even if he claims to be protecting the child.

If you are a landlord: In the context of a separation, if one parent commits damage to the family home after the break-up, these facts may be aggravated if they are linked to the former relationship. For example, breaking a window of the ex-partner who still lives in the property can be classified as criminal damage with aggravating circumstance, with a maximum sentence increasing from 2 to 3 years.

If you are a buyer or co-owner: This case law can also arise in neighbourhood disputes between ex-partners. Imagine your ex-spouse, who lives in the same block of flats, harasses you. Acts of moral harassment (Article 222-33-2-2 of the Criminal Code) are already punishable by 3 years and a €45,000 fine. But if the harassment is committed because of the former relationship, the sentence can be increased to 5 years and €75,000. In Troyes, an ordinary neighbourhood conflict can become a serious criminal case.

If you are in this situation, you should: keep all evidence of the facts (messages, witness statements, reports), file a complaint without delay, and consult a lawyer to assess whether the aggravating circumstance can be applied. The limitation periods are 6 years for offences (unless exceptions apply).

Four tips to avoid this type of dispute

• Anticipate disagreements about the child in the parental agreement: When you separate, have a precise agreement on residence and visitation arrangements approved by the court. Specify the locations, times, public holidays, holidays. The more detailed, the less room for interpretation. Failing that, apply to the family court judge (JAF) for an order.
• Use parental communication apps: Tools like Parentune or 2houses allow you to exchange traceable messages, share a calendar and prove exchanges. In the event of a dispute, you will have time-stamped proof of your requests.
• Never take the initiative not to return the child: Even if you believe the other parent is putting the child in danger, the only lawful course is to apply to the children's judge or the prosecutor. Acting alone exposes you to aggravated criminal proceedings.
• In the event of a property conflict linked to separation: If you share a rental or co-owned property, opt for mediation. An amicable agreement avoids months of proceedings and the risk of an aggravating circumstance. In Sainte-Savine, a family mediation can cost €150 per session, much less than a criminal trial.

Further study: related case law and developments

This decision confirms a trend already observed in the judgment of the Criminal Chamber of 20 March 2019 (No. 18-84.627), where the Court held that violence committed by an ex-partner after separation, even if motivated by jealousy, fell under the aggravating circumstance. But the 2024 judgment goes further by including offences related to the child, even without an intention to harm the ex-partner.

Another notable decision: the judgment of 8 September 2020 (No. 19-86.321) where the Court clarified that the aggravating circumstance applies even if the offence is committed several years after the separation, as long as there is a link with the former relationship. However, the link must be established. If the offence is completely unrelated to the former relationship (for example, a theft in the supermarket where the ex-partner works, but without a motive linked to the separation), the aggravating circumstance does not apply.

For the future, we can expect trial judges to systematically apply this presumption to all offences between ex-partners who have a common child. Family law lawyers must now systematically argue the aggravating circumstance in these cases.

Key points to remember

FAQ

1. What is the aggravating circumstance of former spouse?
It is a provision of Article 132-80 of the Criminal Code that increases penalties for any offence committed by a former spouse, civil partner or PACS partner, if the offence is linked to the former relationship.

2. Can I be prosecuted for child abduction if I keep my child longer than agreed?
Yes, if you exceed the agreed time without a legitimate reason, you can be prosecuted for child abduction. With this decision, the aggravating circumstance will be applied, which almost doubles the maximum sentence.

3. What should I do if my ex-partner does not return my child?
Contact a lawyer immediately and file a complaint. Do not try to recover the child yourself. The police can intervene upon presentation of a court order.

4. What are the time limits for taking legal action?
For child abduction, the limitation period is 6 years from the child's age of majority. For violence, it is 6 years for offences, 3 years for minor offences.

5. Does this decision apply to unmarried couples?
Yes, Article 132-80 also applies to former cohabitants and PACS partners. The 2024 decision makes no distinction.

In summary: If you are a separated parent, be aware that any conflict about the child can now be considered an aggravated offence. It is better to anticipate with clear agreements and peaceful communication. And if the conflict is already there, do not hesitate to consult.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →