Le Divorce
Previously, we explained how to get married in France. Here we will try to answer the many letters asking for the reverse ‘Le Divorce.’
So, sadly for all the unhappy couples out there here goes. In France there are four types of divorce proceedings. They range from proceedings by mutual consent (with minimal judicial interference) to the all out finger-pointing, rage-inducing ‘divorce pour faute’ due to the unreasonable behaviour of one of the spouses. Midway between the two is the divorce requested by one party and accepted by the other. Last comes the divorce based on breach of communal life, usually where the spouses have lived apart for 6 years. In all these cases a lawyer is necessary. (If you lack the financial resources you may apply for ‘aide juridictionnelle’ (legal aid) at the nearest tribunal.) At this time, only a court of law, the tribunal de grande instance or the juge aux affaires familiales may grant a divorce. There is a proposed law which will allow mutual consent divorces to be filed with the local ‘mairie’.
We will start with the relatively ‘easy’ case of a couple with no children. Consider the divorce of Steven and Sharon, who sold their house in England at the top of the market and moved to France to start a new life. They find the classic 17th century barn but soon dreams literally turn to rubble as they find themselves living in a construction site. Fed up Sharon, spends more time with her new friends and Steve is left to soldier on alone. One day Sharon comes home to find an infuriated Steve has sabotaged the electricity the end of hot water and, yes, the marriage. At first Sharon does, but Steve doesn’t want the divorce.
In this case, Sharon finds a lawyer, who will file a request with the Juge aux Affaires Familiales at the nearest ‘Tribunal de Grande Instance’. Even if Sharon felt more comfortable starting divorce proceedings in England, the law sates that a spouse must issue proceedings in the country in which he/she is habitually resident.
Two or three months later (sometimes more, depending on the Court), both parties will be called for a ‘conciliation’ before the Juge aux Affaires Familiales. In our case, Steven will be invited to take his own lawyer, and he would be wise to do so. Steven and Sharon will personally appear in front of the judge in chambers. The judge will want to listen to each party separately and in their own words. And he will want to see if there is any chance to patch things up.
In the process, Sharon and Steven mutually agree that divorce is the best and only solution. Instead of fighting on the basis of an alleged fault (which is often impossible to prove), they will both admit they each are responsible for the failure of their marriage. Their respective lawyers inform the judge. A few months later, Sharon and Steven will be divorced. Steven agrees to buy back Sharon’s share of the house and they draw up a deed with their notaire.
In this case, it will take between 6 months and one year to obtain the decree absolute. And Sharon never mentioned the reasons why she wanted to divorce. The good news is that, under French law, a divorce “pour faute” can, at any time, be changed to an amicable divorce (consentement mutuel or à torts partagés). The bad news is that the reverse is also true at any time the amicable divorce can turn into a nightmare, and far too complicated to address here.
Consequences of divorce:
However, in response to readers, we can touch on the consequences of divorce. First, the ‘innocent’ or aggrieved spouse can seek to obtain damages from his/her ex as well as a ‘prestation compensatoire’. The ‘prestation compensatoire’ is normally a lump sum payment and is fixed by the judge to compensate the ex-spouse for discrepancies in situation resulting from the divorce. The prestation compensatoire may also be paid in the form of monthly installments during 8 years.
An important question is whether the spouse or spouses have property in England. If so, tread carefully, as there are sharp differences between the divorce laws in England and France. Sometimes it is worthwhile for one of the spouses to take a break, go back to England for six months and commence proceedings there. If he or she starts proceedings in France then the division of assets — the house, bank account, the car, the tools — will be drawn up according to the relevant marriage regime. Those married in England typically fall under the regime known here as ’séparation de biens’ (see our column on marriage in the last issue).
When both parties own the property, usually there are two ways of proceeding: the spouses agree to sell the property and share the proceeds or one spouse sells his or her share to the other.
Be careful too if the property has been purchased with a ‘clause tontine’ as is common these days. The divorce judgment must confirm one spouse’s intention to transfer his/her share to the other and both must agree to renounce the clause.
Children:
In the case of children the ‘Juge aux affaires Familliales’ awards custody (la garde) to either the father or the mother. But it is quite common for the award to be made for joint custody with the residence of the child fixed with one of the parents. The spouse who does not live with the child will generally have to pay ‘pension alimentaire’ (child support) fixed by the judge. This can be reviewed and increased with the cost of living (a national index), or varied after a change in circumstances.
Be aware, that if the habitual residence of the children is France, then a mother taking that six-month ‘residential’ break in England could, at a stretch, be considered to have kidnapped the child. Taking the children out of France must be done with the consent of the other parent.
Once the divorce in France is final, the judgment is enforceable in England and in most member sates.
It might be worthwhile and a lot cheaper to go see the latest Merchant Ivory production ‘Le Divorce’.