An American or other expat non-French citizen faced with a divorce in Paris or elsewhere in France will need to understand how such matters are treated in France.
Jurisdiction of French Courts in Matters of Divorce and Child Custody
A Family Court Judge (Juge aux affaires familiales) at the local French Tribunal de Grande Instance has jurisdiction over a divorce proceeding and the relief to be granted if:
- the family lives within its territorial jurisdiction, or
- the minor children reside in such territorial jurisdiction, if the husband and wife live separately, or
- otherwise, in the territorial jurisdiction where the respondent spouse resides, or
- in the event of a joint instituted proceeding, in the territorial jurisdiction of either spouse, if jointly designated. (Article 1070 of the Code of Civil Procedure or “CPC”)
Such requirements are designed to avoid forum shopping among French husbands and wives which could otherwise unduly disadvantage one of the spouses. These restrictions are also current in the United States where most states require the plaintiff party to be a resident of the state for 6 months or a year prior to the commencement of an action in divorce.
However, if one spouse is French and the other non-French, the French tribunal will accept jurisdiction in France on the basis of Article 14 of the French Civil Code, a scenario too complex to be examined in detail in this brief expose.
It should also be noted that, if an American spouse left the family residence in France and returned to the United States with the intention of bring an action in divorce once the 6 months or one year residency requirement had been met, the spouse remaining in France could would have time to bring a valid action in France thereby giving the French tribunal exclusive jurisdiction over the divorce proceedings.
Non-European Union Jurisdiction “Option”
If one of the spouses resides outside the European Union, it may be possible for such spouse to preemptively bring a divorce action in such country and thereby seek to avoid a divorce action in France. This option will be lost if a divorce action is first brought in France by either spouse.
Thus, to evaluate this possible option, legal counsel should be consulted as soon as possible.
Consensual divorce option by filing with a French “Notaire”
Since January 2017, there is a new French divorce procedure whereby the parties have the possibility of not appearing before a French judge and the divorce can normally be obtained by way of the following consensual steps:
- each party must have an attorney,
- a written agreement must be drafted to clearly deal with the key issues: the decision to divorce, complete liquidation of the marital estate, possible lump sum payment, child custody, child visitation rights and child support,
- signature of the agreement by the two spouses and their respective attorneys,
- parental agreement that their child is too young to exercise his right to be heard by a French judge on the visitation and related divorce issues or, in the case of a child who has reached the age of discretion, the signature by the child of a letter whereby he/she renounces his/her right to be heard by a French judge,
- the filing of the signed agreement by one of the attorneys with a notaire.
For divorces involving an international dimension (e.g., non-French nationality of one of the spouses, enforcement outside of France of agreed visitation and child support rights and duties, etc.), this consensual divorce procedure may not provide sufficient “judicial security” and the advise of legal counsel will be necessary.
Commencement of Action to Reside Separately
There are currently four French grounds on which a divorce action may be brought. They are discussed below,. However, there exists an optional intermediate step which is often used to try to render the divorce process less traumatic and less expensive.
Pursuant to Article 251 of the Civil Code, either spouse can bring an initial action to obtain the authorization to live separately and to obtain a temporary order relating to the exclusive use of the family residence, other financial matter and child custody. This is done by filing a petition with the judge, without stating the grounds for divorce or actually asking that a divorce be approved.
It should be noted that a spouse who leaves the family domicile without a court authorization may be deemed under French law to have committed a “fault” giving rise to significant financial consequences. Thus, a spouse should avoid doing so until it has been possible to consult with French counsel,
As the initial hearing will not generally occur for three months after the filing of the Article 251 petition, the spouses and their respective attorneys will have time to try to draft a written agreement resolving all the financial and child custody issues.
If during such period an agreement is reached, at the initial hearing, the judge can (if the parties agree), (a) issue an order granting the divorce by mutual consent and (b) approved the terms of the written agreement, if the judge deems its terms to be fair.
If during such period no agreement is reached, the judge will normally (a) issue a temporary order authorize the spouses to live separately and (b) issue a temporary order with respect to the exclusive use of the family residence, other financial matters and child custody.
Upon receipt of that temporary order, either spouse can initiate an action for divorce, assuming that such action meets the relevant requirement, requirements discussed below.
The spouse requesting the divorce files a brief petition with the Tribunal. (CPC Article 1106)
Grounds on which to Institute Divorce Proceedings
There are currently four French forms of judicially sanctioned divorce proceedings and it is important to make the right choice at the beginning:
- Joint request (“divorce sur demande conjointe des époux“) ( Civil Code Articles 230 to 232),
- Request on the basis of breach of the communal life during a period of 2 or more years (Civil Code Articles 237 to 238),
- Divorce for fault (CPC Article 1128 and Civil Code Articles 242 to 246), and
- Divorce by request of one spouse and acceptance by the other spouse (CPC Articles 1129 et seq. and Civil Code Articles 233 to 234).
The judge hearing a divorce proceeding or a request to be authorized to reside separately has a statutory duty to facilitate reconciliation. (Civil Code Article 251and CPC Articles 1074, 1108-1110). In practicality, this means that the judge will on the same day first separately meet each spouse in chambers without the presence of legal counsel to ask about possible reconciliation. Immediately thereafter, the spouses and their respective legal counsels will meet with the Magistrate who will again ask each of the spouses if they wish to reconcile. Assuming that one or both of the spouses are not willing to reconcile, that phase is ends and the judge will render a written decision containing the finding that reconciliation is not possible (CPC Article 1111).
Assuming the judge concludes that at least one of the parties does not wish to continue to be married, the judge (if previously requested in the pleadings) will issue a temporary order which will normally:
– authorize the parties to live separately,
– determine which parent stays in the home and which must move out
– set temporary alimony and child support.
– temporary custody or joint custody, and
– allocation of the children’s vacations
All these issues and other issues will be reviewed in a separate phase dealing with an eventual divorce. In the event that the parties are not in agreement, the final order granting the divorce may be rendered some two years after the date of the temporary order.
Unless there are special circumstances, French Family Court judges favor joint custody and once the children are old enough, the judge may specify that the children spend 50% of their time in the home of one parent and 50% at the home of the other parent.
If a child is old enough to have a point of view as to the custodial/living arrangements, in the course of the proceedings, the child can send a certified letter to the judge asking that he be heard. In that event, the judge may designate a social worker agency to visit the home(s), interview the parents, interview the child and submit a report to the judge with copies going to the respective legal counsels of the parents. Naturally, if one parent claims that the other parent is unfit, judge may designate a social worker agency or other appropriate expert to prepare a report.
Naturally, the parent having the most income will be ordered to provide financial child support until each child has come of age or terminated his or her studies. In 2010 the French Ministry of Justice issued child support guidelines for French judges. From an American point of view, the amount of child support set forth in the guidelines is very modest.
The French equivalent to “alimony” is generally granted in the form of a lump sum. But, in exceptional circumstances, the amount can be paid out over a period of years The important statutory guideline are as follows:
Civil Code Art. 270
Divorce puts an end to the duty of support between spouses.
One of the spouses may be compelled to pay the other a benefit intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective ways of living. This benefit shall be in the nature of a lump sum. It shall take the form of a capital the amount of which must be fixed by the judge.
However, the judge may refuse to grant such a benefit where equity so demands, either taking into account the criteria set out in Article 271, or where the blame lies wholly upon the spouse who requests the advantage of this benefit, considering the particular circumstances of the breakdown [emphasis added].
Civil Code Art. 271
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 favoring 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.
Division of Marital Property
In the event that marital property (real and non-real property) cannot be divided by mutual consent, the judge will be required to divide the property. With respect to bi-national divorces, such division may become quite complicated. If there are significant assets to be divided and in any case of there is real property is to be divided, the judge will designate a French “notaire” to meet with the parties and their respective counsels and then to file with the Court a detailed report which may well contain recommendations setting forth a proposed equitable division of the property.
One of the important issues affecting the division of marital property is the “marital regime” If there was a valid pre-nuptial agreement (call in French “contrat de marriage”), the issues may be relatively clear. Also, if the parties were married in France and there was no contrat de marriage, the default marital regime is set be French law. But, if the parties were married outside France and there was was no valid pre-nuptial agreement, generally speaking the applicable marital regime will be that in the country or state of the “first marital domicile”. The advice of legal counsel is often needed to seek to determine the “first marital domicile”, as such domicile is determined under French law.
Jonathon Wise Polier
Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New York)