Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New York)
Pursuant to Article 251 of the Civil Code, either spouse can bring an initial action to obtain the authorization to live separately and to obtain a temporary order relating to the exclusive use of the family residence, other financial matter and child custody. This is done by filing a petition with the judge, without stating the grounds for divorce or actually asking that a divorce be approved.
It should be noted that a spouse who leaves the family domicile without a court authorization may bee deemed under French law to have committed a "fault" giving rise to significant financial consequences. Thus, a spouse should avoid doing so until it has been possible to consult with French counsel,
As the initial hearing will not generally occur for three months after the filing of the Article 251 petition, the spouses and their respective attorneys will have time to try to draft a written agreement resolving all the financial and child custody issues.
If during such period an agreement is reached, at the initial hearing, the judge can (if the parties agree), (a) issue an order granting the divorce by mutual consent and (b) approved the terms of the written agreement, if the judge deems its terms to be fair.
If during such period no agreement is reached, the judge will normally (a) issue a temporary order authorize the spouses to live separately and (b) issue a temporary order with respect to the exclusive use of the family residence, other financial matters and child custody.
Upon receipt of that temporary order, either spouse can initiate an action for divorce, assuming that such action meets the relevant requirement, requirements discussed below.
The spouse requesting the divorce files a brief petition with the Tribunal. (CPC Article 1106)
Basis on which to Institute Divorce Proceedings
There are currently four French forms of divorce proceedings and it is important to make the right choice at the beginning. The law may shortly be revised and modernized. But, for the moment, the four forms of divorce proceedings are the following:
The judge hearing a divorce proceeding or a request to be authorized to reside separately has a statutory duty to facilitate reconciliation. (Civil Code Article 251and CPC Articles 1074, 1108-1110). In practicality, this means that the judge will on the same day first meet one at a time with each spouse in chambers without the presence of legal counsel. Immediately thereafter, the spouses and their respective legal counsels (if any) will meet with the Magistrate who will again ask each of the parties if they wish to reconcile. Assuming that both of the parties are not willing to reconcile, that phase is ends and the judge will render a written decision containing the finding that reconciliation is not possible (CPC Article 1111).
Assuming the judge concludes that at least one of the parties does not wish to continue to be married, the judge (if previously requested in the pleadings) will issue a temporary order which will normally:
- authorize the parties to live separately,
- determine which parent stays in the home and which must move out
- set temporary alimony and child support.
- temporary custody or joint custody, and
- allocation of the children's vacations
All these issues and other issues will be reviewed in a separate phase dealing with an eventual divorce. In the event that the parties are not in agreement, the final order granting the divorce may be rendered some two years after the date of the temporary order.
Unless there are special circumstances, French Family Court judges favor joint custody and once the children are old enough, the judge may specify that the children spend 50% of their time in the home of one parent and 50% at the home of the other parent.
If a child is old enough to have a point of view as to the custodial/living arrangements, in the course of the proceedings, the child can send a certified letter to the judge asking that he be heard. In that event, the judge may designate a social worker agency to visit the home(s), interview the parents, interview the child and submit a report to the judge with copies going to the respective legal counsels of the parents. Naturally, if one parent claims that the other parent is unfit, judge may designate a social worker agency or other appropriate expert to prepare a report.
Naturally, the parent having the most income will be ordered to provide financial child support until each child has come of age or terminated his or her studies. In 2010 the French Ministry of Justice issued child support guidelines for French judges. From an American point of view, the amount of child support set forth in the guidelines is very modest.
Alimony is generally granted in the form of a lump sum. But, in exceptional circumstances, the amount can be paid out over a period of year, The important statutory guideline are as follows:
Civil Code Art. 270
Divorce puts an end to the duty of support between spouses.
One of the spouses may be compelled to pay the other a benefit intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective ways of living. This benefit shall be in the nature of a lump sum. It shall take the form of a capital the amount of which must be fixed by the judge.
However, the judge may refuse to grant such a benefit where equity so demands, either taking into account the criteria set out in Article 271, or where the blame lies wholly upon the spouse who requests the advantage of this benefit, considering the particular circumstances of the breakdown [emphasis added].
Civil Code Art. 271
A compensatory benefit must be fixed according to the needs of the spouse to whom it is paid and to the means of the other, account being taken of the situation at the time of divorce and of its evolution in a foreseeable future.
For this purpose, the judge shall have regard in particular to:
- the duration of the marriage;
- the ages and states of health of the spouses;
- their professional qualifications and occupations;
- the consequences of the professional choices made by one spouse during the community life for educating the children and the time which must still be devoted to this education, or for favoring his or her spouse's career to the detriment of his or her own;
- the estimated or foreseeable assets of the spouses, both in capital and income, after liquidation of the matrimonial regime;
- their existing and foreseeable rights;
- their respective situations as to retirement pensions.
Division of Marital Property
In the event that marital property (real and non-real property) cannot be divided by mutual consent, the judge will be required to divide the property. With respect to bi-national divorces, such division may become quite complicated. If there are significant assets to be divided and in any case of there is real property is to be divided, the judge will designate a French "notaire" to meet with the parties and their respective counsels and then to file with the Court a detailed report which may well contain recommendations setting forth a proposed equitable division of the property.
One of the important issues affecting the division of marital property is the "marital regime" If there was a valid pre-nuptial agreement (call in French "contrat de marriage"), the issues may be relatively clear. Also, if the parties were married in France and there was no contrat de marriage, the default marital regime is set be French law. But, if the parties were married outside France and there was was no valid pre-nuptial agreement, generally speaking the applicable marital regime will be that in the country or state of the "first marital domicile". The advice of legal counsel is often needed to seek to determine the "first marital domicile", as such domicile is determined under French law.
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