TABLE OF CONTENTS
1. What are the conditions for obtaining a divorce?
2. What are the grounds for divorce?
3. What are the legal consequences of a divorce as regards:
a) the personal relations between the spouses (for example the family name) ?
b) the division of property of the spouses?
c) the minor children of the spouses (for example, parental authority and maintenance obligations) ? (See “Parental Responsibility – France”)
d) the obligation to pay maintenance to the other spouse?
4. What does the legal term “legal separation” mean in practical terms?
5. What are the conditions for legal separation?
6. What are the legal consequences of legal separation? Can it be converted into a divorce? Is it a necessary condition for granting the divorce?
7. What does the term “marriage annulment” mean in practice?
8. What are the conditions for marriage annulment?
9. What are the legal consequences of marriage annulment?
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?
11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
12. Can I obtain legal aid to cover the costs of the procedure?
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised?
15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in France or who are of different nationality?
1. What are the conditions for obtaining a divorce?
(for example, the possibility of divorce by mutual consent; condition of separation)
There are three types of divorce:
divorce by mutual consent, which in turn includes two distinct types: divorce by joint request and divorce applied for by one of the spouses and accepted by the other;
divorce on the grounds of irretrievable breakdown of the marriage;
divorce on the grounds of fault.
2. What are the grounds for divorce?
(for example, fault; irretrievable breakdown of the marriage, separation)
Divorce by joint request may be applied for by the spouses when they agree on the principle of breakdown and all its consequences. In this case, they are not required to intimate the grounds for the divorce and must only submit to the judge a draft agreement stipulating the terms of their agreement.
Divorce applied for by one of the spouses and accepted by the other presupposes that the two spouses acknowledge that there are factors that make it impossible for them to continue to live together. Unlike divorce by joint request, the consequences of this type of divorce are settled by the judge. Any divorce thus granted produces the same effects as divorce on the grounds of shared fault.
Divorce on the grounds of irretrievable breakdown of marriage requires either that the spouses must have been de facto separated for six years or that the mental faculties of one of the spouses is so seriously impaired that there is no possibility for the spouses to live together or, according to the most reasonable forecasts, resume life together in future.
Fault-based divorce can be requested by one of the spouses for acts attributable to the other spouse where such acts constitute a serious or repeated violation of marital duties and obligations and render the continuation of life together intolerable.
3. What are the legal consequences of a divorce as regards:
a) the personal relations between the spouses (for example the family name) ?
The obligations with regard to fidelity, cohabitation and assistance come to an end when the court decision to grant the divorce becomes res judicata, i.e. there is no longer any possibility of appeal.
Each of the spouses is thereafter free to remarry on condition, in principle, that the wife waits for 300 days from the dissolution of the previous marriage. However, this period starts from the date of the decision authorising the spouses to live separately or, in the event of a joint request, approving the temporary agreement concluded by the spouses. Furthermore, this period does not apply if the divorce is granted on the grounds of irretrievable breakdown of marriage.
Following the divorce, each of the spouses forfeits the right to use the name of the other spouse. However, this principle does not apply if the divorce was granted on the grounds of irretrievable breakdown of marriage at the husband’s request. In other cases, the wife can continue to use the name of her husband, either with the agreement of the latter or with the authorisation of the judge, if she can put forward reasons why this is particularly important for herself or for the children.
b) the division of property of the spouses?
Divorce leads to the dissolution of the matrimonial ties and the division of property
The spouse against whom the divorce is exclusively granted forfeits any marital donations and benefits granted by the other spouse. When the divorce is granted on the grounds of shared fault, either of them may revoke these provisions. When the divorce is granted at the joint request of the spouses, they are maintained, except in the case of révocation conventionnelle??? of the spouses. In the event of a divorce on the grounds of irretrievable breakdown of marriage, the defendant spouse retains ipso jure such donations and benefits.
In the event of a divorce by joint request, the agreement of the spouses to the liquidation of their financial interests determines the granting of the divorce. In other types of divorce, the spouses may agree to this liquidation before the divorce is granted, but they are not obliged to do so. In this case, the liquidation takes place later.
c) the minor children of the spouses (for example, parental authority and maintenance obligations) ? (See “Parental Responsibility – France”)
Divorce has no particular consequences on the rules as regards the exercise of parental authority, which is in principle therefore retained jointly by both parents. Nonetheless, the judge may decide to entrust the exercise of parental authority to one of the parents if this is dictated by the interest of the child.
Each of the parents must continue to contribute towards the child’s maintenance and education. This contribution takes the form of maintenance paid by one of the parents to the other, but it may also take the form, wholly or partially, of direct payment of the expenses incurred for the child. Finally, it can be paid in the form of a right of use and habitation.
d) the obligation to pay maintenance to the other spouse?
In principle, divorce ends the duty of assistance, except where the divorce is granted on the grounds of breakdown of marriage. This duty is maintained for the benefit of the spouse who did not request the divorce, who can at any time request that the other spouse pay maintenance support which will be revised according to the variations in the needs and resources of the former spouse.
In other cases, one of the spouses can be required to pay to the other an amount which is intended to offset, as far as possible, any disparity that the breakdown of the marriage creates in the respective living conditions.
The amount of this payment is set according to the needs of the spouse to whom it is paid and the resources of the other spouse, taking into account the situation at the time of the divorce and any changes in the situation in the foreseeable future.
In principle, it takes the form of capital. This capital can take the form of a sum of money, a waiver of estate in the form of property or usufruct or for use and habitation. If the debtor is unable to pay this capital immediately, the judge may authorise that the payment be made within eight years.
Exceptionally, on the grounds that the creditor cannot support himself/herself because of his/her age or state of health, the judge may set the compensatory amount in the form of a life annuity.
(See “Maintenance claims - France”)
4. What does the legal term “legal separation” mean in practical terms?
Legal separation is legally arranged separation which ends certain marital obligations, such as the duty of cohabitation, although this does not dissolve the matrimonial ties. The spouses cannot therefore remarry.
5. What are the conditions for legal separation?
The cases and the procedure are the same as for divorce.
In the event of an application for divorce and an application for legal separation, the judge who hears the two applications grants the divorce on the grounds of shared fault.
In the event of a divorce on the grounds of breakdown of marriage, there is no possibility of a counterclaim??? for legal separation.
6. What are the legal consequences of legal separation? Can it be converted into a divorce? Is it a necessary condition for granting the divorce?
- Effects of legal separation
Legal separation ends the duty of cohabitation, but the duties of assistance and fidelity continue. Similarly, the wife may continue to use her husband’s name.
At a financial level, the duty to support the other spouse is maintained and maintenance support may be awarded, although any attribution of fault cannot be taken into account. However, as in the case of a divorce the judgement entails the dissolution and liquidation of the matrimonial relationship.
The inheritance rights are maintained, except in the event of a spouse separated from bed and board on the grounds of his/her exclusive fault.
- Conversion of legal separation into divorce
At the request of one of the spouses, a judgement handed down for legal separation can be converted ipso jure into a divorce if the legal separation has lasted three years. In this case, the judge grants the divorce and rules on its consequences.
If the legal separation was granted upon joint request, it can be converted into a divorce only by a further joint request.
Legal separation cannot under any circumstances be a condition for the granting of a divorce.
7. What does the term “marriage annulment” mean in practice?
The annulment of the marriage, which presupposes a judgement, retroactively annuls all the effects of the marriage as if it had never existed.
It differs from dissolution of the marriage, in particular by divorce, which affects only the future.
8. What are the conditions for marriage annulment?
The grounds for annulment of the marriage differ depending on whether it involves a decree nisi (where a vitiation of consent or failure to secure the authorisation of the person who should have authorised the marriage is invoked) or a decree absolute (in the case of nonfulfilment of a public policy requirement).
- Decree nisi
There are two possibilities:
vitiation of consent (mistaken identity or violence)
failure to secure the authorisation of the persons whose authorisation was necessary.
The request can be made only by a limited number of persons: the spouse whose consent was vitiated or who was legally incapable when the marriage was contracted; the persons who should have consented to the marriage.
- Decree absolute
There are six possibilities: total failure to secure consent, impuberty, bigamy, incest, lack of competence of the registrar of births, marriages and deaths and clandestinity.
The request may be made by any person who has an interest in taking action.
9. What are the legal consequences of marriage annulment?
These effects are identical in the case of a decree nisi and a decree absolute.
The personal and financial effects of the marriage are annulled, since the matrimonial ties are deemed never to have existed. For example, if one of the spouses has died, annulment of the marriage will deprive the other of any inheritance rights.
However, this principle can be attenuated if one of the spouses or both was/were acting in good faith at the time of the marriage. In this case, the “putative” marriage remains null and void, but it is treated as if it were simply dissolved. Consequently, all the civil, personal and financial effects prior to the granting of the annulment are maintained.
As regards children, the annulment of the marriage of their parents has no legal effects and their situation is handled as in divorce cases.
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?
Divorce and its consequences must be settled by a court decision.
However, if the parties agree, mediation can be organised during the divorce proceedings. This measure is entrusted to a natural person or to an association that is responsible for hearing the parties, weighing up their points of view and helping them find a solution to their dispute.
Following such mediation, parties who have reached an agreement can submit their agreement to the judge for approval.
11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
A) Divorce applications
These applications take the form of a request submitted by a lawyer or a clerk of the court of first instance.
The territorially competent court is:
the place where the family resides;
if the spouses have separate residences, the court of the place of residence of one of the spouses with whom any minor children are living;
in other cases, the court of the place of residence of the spouse who did not take the initiative to submit the request;
in the case of a joint request, depending on the choice of the spouses the competent court can be the court of the place of residence of either spouse.
In all divorce cases, the spouses must give all the information required for their
identification and their health insurance fund and information relating to the services and organisations that provide them with payments, pensions or any other benefits.
In the case of a divorce requested by a spouse and accepted by the other, the request must be accompanied by a personal statement in which the defendant endeavours to describe the marital situation in objective terms without seeking to qualify the acts or to impute blame to either party.
In the case of a divorce by joint request, the request must not indicate the grounds for the divorce. It must include in the annex an interim agreement whereby for the duration of the proceedings the spouses define the arrangements for their reciprocal situation and that of the children and a draft definitive agreement governing all the arrangements for the effects of the divorce, indicating, where necessary, the notary responsible for liquidating the matrimonial regime.
In the case of a divorce on the grounds of irretrievable breakdown of the marriage, the request must specify the means whereby, during the proceedings and after the dissolution of the marriage, the husband will discharge his duty of assistance and meet his obligations with regard to the children.
B) The annulment of the marriage is requested before the court of first instance of the place of residence of the defendant. This takes the form of a summons served by a bailiff.
12. Can I obtain legal aid to cover the costs of the procedure?
Legal aid, whether total or partial, can be obtained based on the financial means of the person concerned (see “Legal aid – France”).
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
These decisions are subject to normal appeals procedures.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised?
Decisions taken with regard to divorce are recognised ipso jure without any particular procedure, except in cases where such decisions must result in the attachment of goods or coercion on persons. The same applies if it is necessary to enforce maintenance payments or a decision concerning parental authority (see “Maintenance claims – France” and “Parental Responsibility – France”).
15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
To appeal against the recognition of such decisions, it is possible to enter a motion in inopposability before a court of first instance. An inopposability decision provides a basis on which to oppose any further request for exequatur by the other party (i.e. a request to have a decision of another State declared enforceable in France). Otherwise, dismissal is equivalent to exequatur.
The procedure is the same as for a request for exequatur.
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in France or who are of different nationality?
Unless stipulated otherwise in international agreements, according to article 310 of the Civil Code, divorce and legal separation are governed by French law:
where both spouses are of French nationality;
where both spouses have their domicile on French territory;
where no foreign law is recognised as having jurisdiction and where the French courts are competent to hear the divorce application. This latter case concerns situations in which both spouses are not of French nationality and where both are not domiciled in France, but where the divorce application is nonetheless referred to a French court.
Apart from these situations, the French judge applies the foreign law.
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