France
An international divorce is very different from other divorces.
Consideration must be given to the court’s jurisdiction, applicable law, recognition of the foreign marriage and enforcement of the court’s order.
When a parenting plan has to be made, it is more complicated when the parents do not live in the same country.
On this page you can read how this is regulated in France.
Country Reporter:
Simon Issler
Simon has extensive experience with family law and international divorces.
He works from his law firm in Paris, where he often works for expatriates.
Simon has volunteered to keep this page about France up to date.
Lawyers and mediators in France
We provide a list of lawyers and mediators in France, who can assist you with your international divorce.
Divorce procedure: France
Starting the procedure
In France, there is contentious divorce and amicable divorce, which, since January 1, 2017, is extrajudicial..
As for contentious divorce, it concerns three cases of divorce:
– divorce for fault, which mainly concerns adultery, violence, but more generally serious or repeated breaches of the duties and obligations of marriage attributable to a spouse that make it intolerable to continue living together. This divorce requires solid proof of fault. It may lead to the award of damages, although only if, in addition to proof of fault, proof of prejudice is provided. It should be noted that French judges do not award large sums. It’s more symbolic and for moral consolation.
– divorce for definitive alteration of the marital bond, when the requesting spouse can prove at least 1 year of separation. Thus, in the absence of fault on the part of the spouse, if one spouse wants a divorce but the other refuses, after one year, the spouse who wishes to divorce can do so.
– divorce for acceptance of the principle of separation. This divorce concerns cases where the spouses agree to divorce, but disagree on the consequences of the divorce, such as the financial ones or the consequences for the children. In practice, this type of divorce is also used in the event of total agreement, for the sole purpose of obtaining a divorce judgment. This is because divorce by mutual consent is no longer a judicial procedure in France, and in international situations, if the divorce is to be recognized in certain foreign countries, we sometimes need to obtain a judgment.
The contentious procedure involves two stages: first, one of the spouses summons the other, then there is an initial hearing on provisional measures. Then, a second part which is a written procedure, at the end of which the judge rules on the grounds for divorce and the final consequences, such as the use of marital name, and the compensatory allowance.
Interim decisions- Mediation / alternative dispute resolution
– Interim decisions- Mediation / alternative dispute resolution
After the first hearing, the judge sets the spouses’ separate residences, rules on the use of the marital home for the duration of the proceedings, who takes over debts, he determines a spousal support if needed, and rules on custody and child support. The judge may also refer the spouses to mediation.
– Filling evidence- Duration -Court hearing
Duration varies from court to court. Generally speaking, however, it takes between 1 and 2 years between filing for divorce and final judgment.
It should be noted that if the spouse being summoned resides abroad, the time limit for the first hearing is increased due to legal distance delays.
– Decision- Registration of the Divorce
Once the divorce decree has been issued, it must be notified to the other party. Notification opens a deadline for filing an appeal. At the end of this period, if no appeal has been lodged, the divorce is final. We must then apply to the Court for a certificate of non-appeal, which enables us to have the divorce recorded in the civil register, provided that at least one of the spouses is French, or that the marriage took place in France and is recorded in the civil register.
– Difference between marriage and registered partnership
Since 1999, France has had a civil solidarity pact (PACS), a type of civil union.
It is easier to enter into a PACS than a marriage and, above all, easier to leave (a PACS can be terminated by a single unilateral declaration). PACS does not have the same effects as marriage. Unlike marriage, a PACS does not guarantee protection of the family home, it does not create a presumption of paternity, and it does not make the partner an heir (they must mention each other in a will).
Amical divorce: France
Divorce by mutual consent in France is no longer a judicial procedure, since 2017.
Each spouse must be represented by a lawyer.
Once full agreement has been reached on the divorce and all its consequences, the lawyers draw up a divorce agreement that settles all the property, maintenance and extra-patrimonial consequences between the spouses, as well as with regard to the children.
The agreement is then sent to each spouse by registered mail with acknowledgement of receipt. There is then a legal 15-day reflection period, which must be respected. The agreement can then be signed by the spouses and their respective lawyers, all four of whom must be in the same room.
The agreement is then sent to a notary, who registers it and issues a certificate of filing, which makes the divorce enforceable.
This procedure does not result in a divorce decree, which can be an issue in international situations, as some foreign countries do not recognize this type of divorce. Therefore, even if the spouses are in full agreement on their divorce, it is sometimes necessary to have recourse to a judge.
Treaties and regulations: France
France is bound by all European regulations on private international law, in particular: Brussels II ter, Rome III, the regulation on maintenance obligations, and the regulation on matrimonial property regimes.
France is also one of the few countries (along with Luxembourg and the Netherlands) party to the Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes.
Court decisions: France
Interim Decisions
At the hearing on provisional measures, the judge sets provisional measures:
– Between the spouses: separate residence and use of the marital home by one or other of the spouses, free of charge or against payment depending on the situation, temporary assumption of responsibility for household debts, and possibly a maintenance allowance under the spousal support
– With regard to the children: residence of the children, visiting and accommodation rights, child support allowance, etc.
Division of Assets
The division of assets can take place at the same time as the divorce in the event of an agreement. Otherwise, it takes place after the divorce: the judge refers the parties to an amicable division and if there is disagreement, one of the ex-spouses must file again to the court and the judge must be asked to rule on the liquidation of the matrimonial property regime
Alimony
When granting a divorce, the judge may award one of the spouses a compensatory allowance to offset the disparity in living standards caused by the divorce.
In principle, this compensatory allowance is a lump sum. The judge may also, at the request of one spouse, pay the capital in monthly instalments, for a maximum of 8 years.
More exceptionally, the compensatory allowance may take the form of an annuity.
The amount of the compensatory allowance is not defined by a legal calculation. Article 271 of the French Civil Code sets out a number of non-exhaustive criteria that the judge may take into consideration:
“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 favouring 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”.
Pension
In the event of the death of one spouse, the other spouse may, under certain conditions, be entitled to the reversionary pension: the reversionary pension is a portion of the pension (equal to 54%) that your spouse or former spouse was receiving or could have received (excluding increases).
Children : France
Parental authority
In principle, both parents whose filiation has been legally established have joint parental authority, regardless of whether they are married or not.
Divorce has no impact, as the parents continue to exercise parental authority together.
The family court judge may, however, grant parental authority to only one of the parents, but this is limited to serious cases, such as the proven inability of one of the parents to make decisions in the child’s best interests, or the total disinterest of one of the parents in the child.
Main residence
If the parents separate, the judge decides on the children’s residence. He or she may decide that the children should live with one or the other parent, or that they should live alternately. To make such a decision “the judge shall take into consideration in particular:
1° The practice previously followed by the parents or the agreements they entered into earlier;
2° Feelings expressed by a minor child in the way provided for in Article 388-1;
3° The capacity of each parent to assume his or her duties and to respect the rights of the other;
4° The result of court-ordered appraisals possibly carried out, taking into account in particular the age of the child;
5° Information collected in possible social enquiries and counter-enquiries provided for in Article 373-2-12” (Article 373-2-11 of the French Civil Code).
Care arrangement, international visitation schedule
In international cases, the judge will set the children’s residence with one of the parents and grant visiting and accommodation rights to the other, who lives abroad. This may involve, for example, all school vacations. The judge will decide where these visiting rights are to be exercised (in France or abroad), and will decide how travel expenses are to be shared between the parents.
Alimony
Child support is set according to the parents’ respective resources and the children’s needs. There is no legal method for calculating child support. Judges set it on a case-by-case basis. It can be modified by agreement or by the courts in the event of a change in circumstances, such as an increase in the creditor’s or debtor’s income.
It is payable until the child completes his or her studies and has his first job, and receives a minimum income.
Relocation after seperation (with reference to www.carefulchildrelocation.com/France)
In the event of separation, if one of the parents wants to move abroad with the children, for example, the other must agree.
In the event of disagreement, authorization must be sought from the family court. This requires convincing the judge that relocation is in the child’s best interests, rather than staying in the current country.
It should be pointed out that France is a signatory to the Hague Convention on international child abduction, and can implement it in cases of child abduction to or from France.
It should also be noted that the abduction of a child by one parent, in disregard of the rights of the other, is a criminal offence that can lead to prosecution before the criminal court.
Voice of the child/ child interview
Children have the right to be heard in any legal proceedings concerning them. When the child so requests, it is a right, and the judge cannot refuse to hear the child, unless he or she considers the child to be below the age of discernment. The age of discernment is not set by law. Generally speaking, it’s around 9 years of age.
When the child is heard, his or her parents are not present and the child is assisted by a lawyer, appointed by the court.
The judge can only take the child’s opinions into account during the hearing. However, the judge is not obliged to follow what the child says; if he or she feels that the child’s choice to live with a particular parent, for example, is not in his or her best interests.
Same sex marriage / registered partnership: France
Civil partnership is open for same sex couples since 1999.
Since May 17, 2013, marriage has been open to same-sex couples in France, as well as adoption.
Legal aid: France
Blogs about France
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Case law in France
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