Divorce law was amended by the Act of the 26th of May 2004, which came into force on the 1st of January 2005. The aim of the reform was to appease the spouses’ break up and to favour agreements between them.
The procedures provided by law are different depending on whether the spouses agree or not on the decision to divorce. Two paths are possible: one that is amicable, which is called divorce by mutual consent, and another that is litigious.
Note that in the case of a litigious divorce, the court may at any time determine and record an agreement between the spouses on one of the divorce consequences; spouses may also join at any time the amicable procedure of mutual consent.
Different types of divorce
Divorce by mutual consent
Spouses agree on all of the divorce consequences: on marriage breakdown and its effects (extra patrimonial effects as well as patrimonial effects) by submitting to the court’s approval an agreement governing all of the divorce consequences.
The court may pronounce the divorce after one appearance of the spouses before the judge if the latter is convinced that both spouses really want to divorce, that they are well informed of the consequences of this decision and that their consent is free. The court may refuse to approve the agreement and decide not to pronounce the divorce if the agreement does not sufficiently preserve the children’s interests or those of one spouse.
Nevertheless, the judge will have the possibility to approve provisional measures agreed by the parties until the date the divorce decision becomes final.
The judge will invite the couple to find a new agreement in a minimum period of six months.
In the absence of such an agreement in the prescribed period, or if the agreement approval is refused again, the divorce claim will be rendered null.
Divorce by acceptance of the principle of marriage breakdown
Either spouse or both can now request divorce, when they accept the principle of the dissolution of marriage, regardless of the facts behind the break-up (without grounds).
As a result:
- the request is not based on the statement of the facts ;
- acceptance of the principle of the break-up is not likely to be withdrawn, even by appealing the decision ;
- If the court is convinced that each spouse has given their free consent, the judge pronounces the divorce and rules on its consequences.
Divorce following permanent deterioration of marital life
This type of divorce for a couple’s failure of living together allows either of the spouses to request a divorce because they have ceased living together for a certain amount of time (brought to two years by the new Act).
Duty of assistance disappears. The spouses’ relationship is ended, except for payment of a compensatory lump-sum allowance, which, in exceptional cases, can take the form of an annuity, but the judge must explain the special grounds for the decision (see “Maintenance allowances and alimonies »).
Divorce on the grounds of fault
A spouse can ask to divorce when certain facts constitute a serious or repeated violation of duties and obligations of marriage owing to one of the spouses, thereby rendering it intolerable to pursue cohabitation.
Note that the spouse against whom the divorce has been pronounced may, however, be entitled to benefit from a payment of a compensatory lump-sum allowance (with exceptions). Before the reform of the 26th of May 2004, it wasn’t able to claim such an allowance. This type of divorce is rare.
Legal separation may be requested and obtained by the same proceedings as divorce, but does not produce the same effects.
The marriage is not legally dissolved and duty of assistance remains between the spouses.
That is to say that the spouses live in separate homes, their common or joint assets have to have been shared, but they are bound by the duty of assistance and one spouse may have to pay alimony to the benefit of the other.
The matrimonial regime is transformed into a separate estate system and must be liquidated.
Two years after the final date of the decision of legal separation, either spouse can seek divorce.Divorce is then automatically granted (for breach of common life). However, this request must be the object of a new judicial procedure and a new decision.
In practice, because the relationship is already deteriorated, it is preferable, to initiate divorce proceedings. If no amicable agreement can be found, the judge will rule on all of the consequences of divorce without risk of a second decision, which would necessarily be postponed.
The consequences of divorce
Whether it be by mutual agreement or by court decision, the children are entrusted to one of the parents or to both parents who exercise parental authority, either alone or jointly with the ex-spouse.
Except in the case of alternated custody, and if no agreement has been found by the parents, the parent who did not get the child’s custody has access to the children and welcomes them in his/her home during the periods specified by the judge in the divorce decision.
Maintenance allowances and alimonies
There are two categories:
1- Concerning the children
Divorce does not interrupt the legal obligation to contribute to the education and maintenance of children. The parent who does not have custody of the children must pay child support to the other. If no agreement has been found by the spouses, the judge determines the amount of this allowance based on the resources of both parents and on the children’s needs. Child support is indexed on the cost of living and has to be paid until the children can meet their own needs, including after their majority (if necessary). It is usually indexed (the amount varies every year) and may be revised by the Family Court if any changes concerning the needs or the resources have occurred.
2- Concerning the spouse
When one spouse does not work or when incomes are very disparate, divorce may create significant imbalances in the lives of the ex- spouses.
In order to rectify this situation, the spouse who has the most substantial incomes may be required to pay the other alimony during the procedure (under duty of assistance) and maybe also a capital after the divorce.
In this latter case, there is a « compensatory allowance ». The judge may order a compensatory allowance in the form of annuity if there are special grounds in the decision (if the spouse cannot meet his/her own needs because of his/her age or state of health) and if it is impossible to produce a lump-sum for the spouse.
The impact on the estate
Divorcing has a significant impact on the spouses’ estate and entails the necessity of splitting the common assets or joint assets between the spouses.
The intervention of a notary is recommended here and is necessary when the couple owns real estate. In fact, sharing a selling price does not always imply two shares of the same value either because of the debts between the spouses that the notary will be able to evaluate, or because of compensation owed by or to the community liquidated by the notary (because of legacies, donations, handed gifts, assets owned before the marriage).
The notary may have to prepare a project during the procedure, either at the request of the parties or by court order within the context of the non-conciliation order.
The fate of donations and benefits between spouses
Divorce does not affect donations between spouses concerning present assets, that is to say, the direct or indirect donations that the spouses were able to consent to each other during marriage. Donations on death and marriage benefits taking effect at one of the spouses’ death can be freely revoked, unless the spouses decide to keep these benefits (which is rarely recommended) or if the judge decides so.
This rule was introduced by the divorce reform and will avoid past difficulties which resulted from spouses having forgotten to revoke their testamentary dispositions or « donations between spouses ».
The family house
One of the spouses, especially the spouse who has custody of the children, can ask to keep the family home.
- In case of lease, this spouse will become sole tenant,
- if the spouses own the house together, the spouse entitled to keep the house must buy the other’s share and ask for preferential allotment
- in certain special cases, it may either be imposed by the judge or decided by mutual agreement between the spouses that the family house remain in joint ownership for a maximum period of five years.
- if the other spouse is sole owner, then the spouse who is entitled to keep the family house becomes the other’s tenant .
If the spouses cannot come to agreement, the judge will rule on the terms of the use and allocation of the family home.
Note that the former family home is legally still considered as such during the divorce proceedings and that in case of sale, the consent of both spouses is required.
Various questions about divorce
Are donations between spouses revocable?
There are two types of donations between spouses. Some have an immediate effect: these are donations of present assets, such a sum of money or of real estate made by one spouse to the other. The other kind of donation does not produce any effects before death (just like wills): it these are donations of future assets that are said to be « because of death, » or “donation to the last survivor ».
Donations of present assets and other marital benefits that come into effect during marriage are revocable if they were made before the 1st of January 2005. They are binding if they have been consented since that date. In all cases, they are maintained in case of divorce.
Donations of future assets are revocable like wills. Matrimonial benefits that do not come into effect during marriage, such as the provision of full allotment, are removed automatically in case of divorce. Since the 1st of January 2007, the spouses may, if the prenuptial agreement provides so, take back the assets they had brought to the community. Seeking advice form a notary at the beginning of the procedure will enable you to draft an appropriate will.
Are maintenance allowances taxable?
Yes, they are subject to income tax. Conversely, they are deductible from the income of the person who pays them, except in the case of special tax the first year. Likewise, compensatory allowances are deductible under certain conditions and have to respect a ceiling.
Is it possible to review the amount of the maintenance allowance?
The pension is indexed to the INSEE index of the cost of life and is established according to the resources of the person who pays it and to the child’s needs. If significant changes occur at this level, you can go to Family Court to request a review.
When can I remarry?
You can remarry when the divorce is final, i.e. after the expiry of the appeal period.
The use of the name
In the event of divorce, each spouse loses the use of the other spouse’s name.
But, one spouse can keep the use of the name of the other, either with the latter’s consent or with the court’s authorization, if the spouse justifies his particular interest for him/her or for the children.
What happens to the compensatory allowance if the debtor dies?
The compensatory allowance due to the former spouse is due immediately after the divorce. It is deducted from the estate and the heirs are not personally liable for this allowance.
If it is an annuity, it will be converted to a lump-sum by applying a scale fixed by decree.
However, the amount of the reversion pension is automatically deducted from the annuity.
How should I report income in the year of divorce?
One common declaration has to be made.
Which judge should one refer to in case of divorce in an international context?
If one of the spouses is a foreigner, or if French spouses live abroad, it is difficult to know which law will be applicable and before which court the spouses should bring their action. However, the patrimonial and personal consequences of divorce, decided by the judge may vary considerably from one country to another.
Within the European Union, the European Act called Brussels II bis applies when the spouses or one of them have their habitual place of residence on the territory of a State which is a member of the European Union. In this case, the Act provides that the court will have jurisdiction according to two criteria:
. Residence: it is the place of residence where the spouses live most often or the last place of residence where the spouses live most often provided that one of them still lives there, or it can also be the habitual residence of the applicant if he/she lived in the country for at least one year.
. Nationality: the court of the State of the spouses’ common nationality can have jurisdiction.
Outside of the European Union, in accordance with French law, jurisdiction is determined thanks to three criteria: the family residence, if none, the residence of the spouse who has custody of the children, and if none, the residence of the spouse who has not initiated the divorce (the defendant). However, in some countries, even if the criteria mentioned above are not fulfilled, the judge will be able to say they have jurisdiction because they have been referred to before the other court(s).
Note that a new European Act called Rome III applies to the states that are members of the EU and allows the spouses, if they agree, to choose the law applicable to their divorce in the form of a written agreement.
It is therefore highly recommended to consult you notary before being confronted with the question of the court’s jurisdiction and its impact on the divorce.
What are the effects of a foreign divorce decree in France ?
In principle, a divorce decree pronounced abroad produces effects in France, without exequatur (French judgment making the divorce verdict granted abroad enforceable), provided that the judge’s decision is lawful.
For State members of the European Union, the Brussels II bis Act demands that foreign divorce verdicts of a member State be recognized in other member States where they are invoked.
If a foreign decree provides a sharing of the assets of the couple, including the allocation to one of them of real estate located in France, a French notary should be contacted and be given an official copy (authentic or certified copy) of the foreign divorce decree, so that the notary may draft a real estate certificate mentioning the divorce decree.