Two non-French nationals may divorce in France if the “family home” is located in France, or failing that, if the parent with whom the minor children live is resident in France, or again, failing that, if the person who has not taken the initiative of the divorce is domiciled in France.
Generally, French law will apply to a divorce between foreigners who are both domiciled in France although a French judge can apply a foreign law when rendering a decision. In practice however this rarely happens because the parties would need to convince the French judge of the contents of that foreign law. Most French judges will feel more comfortable working with French law.
There are four main types of divorce procedure in France: one hostile, two amicable and one for a prolonged separation :
1. Divorce by mutual consent (divorce par consentement mutuel)
This is the simplest, fastest divorce whereby both parties agree on everything (custody of the children, contact with the other parent, asset split and so on). Before submitting a petition to the judge, the parties will have asked a notary to draft a document showing the agreed asset split (état liquidatif).
Note: The notary’s participation is only compulsory if the assets comprise real estate, if not the parties can draft the asset split themselves. The judge will then simply order the divorce and rubber-stamp the asset split as submitted by the parties. If the judge considers that the asset split is unfair, they may refuse to approve the document, however this rarely happens in practice.
2. Accepted divorce (divorce accepté)
This is put in place when the parties agree that a divorce is inevitable, but have not reached agreement on the split of assets or questions relating to the children. The judge will therefore make these decisions for them.
3. Contested or hostile divorce (divorce pour faute)
This procedure involves a lengthy, often bitter battle, to demonstrate that the other party is responsible for the breakdown in the marriage.
4.Divorce for prolonged separation (altération définitive du lien conjugal)
This divorce procedure may be used where a couple have lived apart consistently for more than two years (before 2005, the separation period was six years).
Except in the case of a divorce par consentement mutuel, divorces are obtained in a two-stage procedure.
The party who does not have custody of the children will be ordered to pay financial support for the children even if their income is less than that of the custodial parent (contribution à l’éducation et à l’entretien des enfants). The judge assesses the amount due by calculating the needs and expenses of both parties.
The “impoverished” spouse also has the right to ask for additional financial support for their personal benefit. The judge will be asked to determine whether the divorce will create a disparity in the financial situation of the parties as well as the children’s needs.
There is no fixed rule for calculating the amount of this financial support. Some criteria are laid down in the Civil Code, such as the duration of marriage, age of the parties, respective income of parties, whether one party stayed at home to look after the children and so on. The Civil Code states that the financial support should be paid as a lump sum.
Some financial guidelines have been published, but decisions vary between the courts. However most common is for a French judge to award between one third and one quarter of the wealthier party’s income and/or pensions for marriages of long duration (more than 20 years).
When calculating the prestation compensatoire, the judge does not normally take into account jointly held assets: even if one party has a right to half the value of a house, that same party may still ask for the prestation compensatoire if they satisfy the criteria.
It is also possible to pay the prestation compensatoire in kind.
It is not the French judge’s function to split assets – this is done by the notary after the divorce.
Obviously there is little difficulty in splitting jointly held assets (for example, a house held “en indivision” will be split 50/50 unless the original purchase deed indicates a different percentage holding).
It should be noted that a notary does not have judicial power. They can suggest the way the assets should be split, but if the parties do not reach agreement then the case will return to court and only a judge can impose the division of assets.
The assets should be split in accordance with the matrimonial regime of the parties. However the marital regime normally corresponds to the regime applicable in the first country of residence after the marriage (unless the couple were obviously only living there on a short term basis).
The community regime (communauté légale) states that anything purchased after the marriage will be considered a jointly owned asset, whereas anything purchased before will be the property of the sole purchaser. The exception to this rule is donations and legacies which will remain the sole property of the beneficiary even if they are received during the marriage.
This community regime rule applies even if only one spouse works and so all the assets (movables and property) have been bought from one salary only. Under French law these assets will be considered jointly owned and shared accordingly.
Compensation may be claimed however if, for example, one party sold a home purchased prior to the marriage and invested that money in the family home purchased after the marriage.
The situation becomes more complicated if the parties consider that a foreign marital regime applies.
It is rare for a French notary to split assets after a divorce in accordance with a foreign law. Although this scenario is not impossible, it would require the help of a notary with a good understanding of
English and demonstrating to the notary the contents of English law on asset sharing (if the parties requested the application of English law).
It is more common for a French notary to proceed with the asset split in accordance with French law. As long as both parties are reasonably satisfied, the question of the applicable law will not arise.
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 favor any agreement. If the spouses are willing to accept a divorce based on the breakup of the marriage after a separation of two years, they will be able to change the basis of their petition.
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 breakup of the marriage, because two years have lapsed. Moreover, 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.
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.
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.
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).
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.
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.
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).
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.
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.
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 :
Once the first order is made, either one of the spouses may file the formal petition based on any kind of divorce.
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.
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.
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 consequence s 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.
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.
Divorce and taxes
The new law grants the spouse tax benefits that did not existed in the previous regime.