Getting divorced is almost invariably a painful and costly experience. And the process becomes even more complicated if you’re living away from your roots in France. So parisfranceguide has decided to run a series of articles on the subject, written by Véronique Chauveau and Sophie Tougne, both French lawyers who are specialists in French family law. The first article in the series discusses the effects of a new law which came into force on January 1st 2005, which should simplify and speed up the process………
Divorce in France is undergoing radical change due to new law ( (N° 2004-439 26 mai 2004) which came into force January 1st 2005.
* Period of Transition:
If the formal petition for divorce was filed before Jan.1st 2005, the procedure will still be subject to the former law but the family judge will nevertheless favour any agreement. If the spouses are willing to accept a divorce based on the break up of the marriage after a separation of two years, they will be able to change the basis of their petition.
Example: Ann B (who separated de facto with her husband in May 2002) filed a request for divorce in September 2004 and obtained a temporary order (“ordinance de non conciliation”) in October 2004. She then files her formal petition for divorce on the 13th of December 2004. In January 2005, the new law came into force. Although she has based her petition on desertion of family home (i.e. her husband left her) -a fault pursuant to the article 242 of the civil code- she accepts, in order to ease the divorce (in the best interest of the children), to change her basis for the break up of the marriage, because two years have lapsed. More over, her husband Karl B decides to accept family mediation. The agreement signed in mediation will be filed in court and the judge will take it into account. The procedure has thus been accelerated, the children's best interest protected, and the costs have been substantially reduced.
* This new law grants the judge the right to make orders before the request for divorce is filed in case of domestic violence.
Article 220-1 of the Code civil allows the judge to execute an order for the eviction of a violent spouse. The judge will be able to rule that the victim spouse will stay at the family home. In the same order, the judge may decide on the modalities of parental responsibility, as well as on the monthly alimony that the author of violence should pay towards the family. NB: If the victim spouse does not file within four months of the order for divorce or separation, the said orders will no longer be enforceable.
Example: Mary’s husband beat her up again on February the 4th 2005; she has three kids and cannot afford to leave the family home, as she is a housewife. Her lawyer seizes the family judge pursuant to the article 220-1 of the civil code and obtains on the 23rd of February 2005:
• the free use of the family home for Mary
• a temporary custody order on the children
• the eviction of the husband John Z.
• an alimony ("contribution aux charges de la famille")
As the laws protecting tenants do not protect violent husbands, John Z is evicted from the home.
Mary files a request for divorce in April 2005. If she had not done it, the order will have been considered as void four months after the 23rd of February 2005.
* The new law modifies the cases in which divorce may be requested.
(a) Divorce based on mutual consent
The parties will appear only once at the hearing. It is only if the family judge considers that the rights of the children OR of one spouse have not been adequately protected that the said judge may refuse to make an order of divorce.
This type of divorce is now available immediately after marriage (the former law stated that it was not available until after six months after marriage).
Example: Pierre and Jill X have been married ten years; they have a prenuptial agreement based on separation of each spouse's assets. They jointly bought a house near Paris and have three children. They consider their marriage as a failure, agree to sell the house and share the net price in halves, and agree that the children will live at Jill's, whereas Pierre will have large access (i.e.: more than one weekend in two) and overnight access for halves of all school breaks. They agree on the financial consequences and child support. Theirs lawyers will prepare the common request and they ask a notary to prepare the winding up documents. They jointly go to court and after the first hearing they are divorced.
(b) Divorce based on acceptation
Either both spouses request jointly from the judge to undertake their agreement for divorce, either one of the spouse request divorce or both spouses accept the principle of divorce at the first hearing. In both cases, when the agreement is given to the Judge it cannot be taken back.
Example: Ken and Jacqueline R. agree to divorce but they harshly battle on finances. In order to save costs and time, their lawyers offer them to accept the principle of divorce, whereas they remain free to fight over the consequences. Ken's lawyer files the request for divorce and at the first hearing Ken and Jacqueline undertake that they agree on the divorce. Neither one of them will obtain leave to fight over the principle of divorce again, whereas both of them will remain free of fighting over the consequences.
(c) Divorce based on definitive alteration of the marriage:
Due to the new law, the former divorce of breaking up of common life (less than 1.5 % of former divorces) with a delay of six years of de facto separation with the consequence for the plaintiff was that he/she was held liable for alimony for the rest of his/her life has been replaced. The delay is now TWO YEARS from the formal petition. From now on divorce will no longer be a permanent burden for the person who asks for it even if he or she is at fault. It will end as in any other case of divorce, by a compensatory lump sum or temporary monthly payment, if the conditions are found ( i.e, income of both parties).
Example: 18 months ago, Jonathan left his wife and since then they live apart. He has no grief against her. He just wants to end the marriage. His request can be filed immediately as long as his formal petition will be filed once the delay of 2 years has lapsed. He does not need to bring any proof that they have been living apart for two years.
(d) Divorce based on fault (violation of the duties and obligations of the marriage)
In France more than 40% of divorces were based initially on these grounds, whereas it very often ends with a mutual fault divorce. The main attraction of this type of divorce is that the "sole guilty" spouse will not be deprived any more to his/her right to a compensatory lump sum.
Example: Jonathan's wife, who feels her husband (who now lives with his girl friend) has betrayed her, may also file a request for divorce and then a petition based on adultery. She can also answer to Jonathan's petition by a brief asking for divorce based on adultery (fidelity is still one duty of the marriage).
(e) Bridges between these different kinds of divorce:
At any time during the procedure, the spouses are granted the right to present an agreement on one point or solving the entire divorce (division of marital properties, lump sum, children…).
Moreover the judge may at any time accept that the divorce be transformed into a mutual consent divorce.
Example: Jonathan's wife had filed a petition based on adultery. The couple enters into mediation and she understands that for the children's best interest, an honest peace would be preferable. Her lawyer and Jonathan's prepare a joint request taking into account their agreements and the order for divorce is made based on agreement either on all points (fully amicable divorce) or on some of them, and the divorce may be based on the definitive alteration of the marriage, thus saving costs and time.
The new law also alters the procedure for divorce
Request, first hearing:
In order to file a request for divorce, you need a lawyer. The request is now neutral and does not state WHY a divorce is asked for.
The family judge has the duty to try to reconcile the spouses at the first hearing. If he /she cannot succeed, then an order will be made on temporary measures, pending the divorce itself. The judge has enlarged powers such as to :
• Order mediation to the spouses.
• Summon them to attend a meeting on information about mediation
• Entrust to one of the spouses the use of family home and furniture, stating if this use is for free or not, and if this is the case, acknowledge the agreement of the spouses on the value of the occupation of the said home;
• Rule over the use and management of common or joint assets
• Appoint a professional to make an inventory of the assets and propose a solution for financial measures for the spouses;
• Appoint a notary for elaboration of a draft of winding up
• Ask the spouses to offer a solution for winding up.
Once the first order is made, either one of the spouses may file the formal petition based on any kind of divorce.
The new law also varies the consequences of divorce
(a) The wife's name:
Any reference to the sex of the spouses has been wiped out in order to comply with parity. Except if the wife presents a real interest to keep the husband's name (professional for example), the wife will take back her maiden name.
(b) The date of the effect of divorce:
If the divorce is mutual consent, the spouses will freely decide when the winding up will retroact if necessary. In any other case, the date of the order of divorce will be the date of winding up.
In any other case of divorce, the effects will retroact to the date of the first order of non-conciliation.
(c) Compensatory lump sum:
Divorce puts an end to the duty of marriage linked to the maintenance ("devoir de secours"). The compensatory lump sum granted by the Judge will depend on the financial resources of each partner as it did before. In the former law, the guilty spouse was deprived of any right. This is clearly over.
If during the procedure, the spouses agree to a lump sum, the Judge will accept to make it in the form of an order.
Note that whereas in Anglo-Saxon countries, the judge will make an order based on equity (division of assets), in France, the equity (“prestation compensatoire") has to take into account prenuptial agreements of the local regime (i.e. where the prenuptial agreement was made.)
How will the judge rule on the lump sum? The criteria have been enlarged, whereas already completed by the previous law dated 30th of June 2000 to one new element " the consequences of professional choices made by one spouse during the common life, for the children's education, or to favour his/her spouse's career to the detriment of his/her own". For example a wife of an ambassador who is unable to develop her own career because of the time she spends helping her husband with his, would be entitled to more compensation than a wife who has devoted her marriage years to her professional career.
The lump sum may be paid either in capital or monthly instalments, or a mix of the two.
(d) Winding up of matrimonial properties:
From the formal petition, the spouses shall present a proposal of the winding up of the matrimonial properties. If they disagree, the judge ruling over the divorce, will also rule over them.
During the year following the order of divorce, if the winding up is not finished, the notary will transfer a document about it to the judge who will be able to grant a new delay of six months. If the winding up is not over when the new delay is over, the court will rule over the winding up.
(e) Donations between spouses:
Again this is an important point reformed. The article 265 of the Civil code states now that donations made during marriage on existing assets or rights will not be cancellable upon divorce. Donations of future assets can be cancelled.
(f) Divorce and taxes:
The new law grants the spouse tax benefits that did not existed in the previous regime.
Gossary of terms
“Assignation” (formal petition): this is served on one party by the other. Using a lawyer for this is compulsory. After the "assignation” follows the (“mis en état”) which is the period of discussion and exchange, then the final hearing (“l’audience”) when the judge makes the final judgement on the divorce, which can be appealed up to one month afterwards
“ juge de famille”: A judge who specialises in family matters.
“Requete” This is when the demand for a divorce is filed at the registry and a date is set for conciliation. The judge will then issue an order with temporary steps which is served with the “assignation”