Separation

Cohabitation is a de facto union which each party may enter and leave without commitment. In principle, the parties are free to separate. Therefore, no legal rule comes into play when cohabiting couples break up. It is therefore the responsibility of each member of the couple to exercise this freedom without committing any misconduct and to deal with the effects of the separation between themselves.

If either partner abuses this right to separate, for example, if the circumstances are violent, abusive or afflicting, the damage done by such misconduct may be compensated through a court order.

Separation may also affect one’s estate, for example, when one of the members of the couple worked for the other for free without ever receiving compensation. Depending on the couple’s history, there are several legal bases that would allow a family affairs court to re-establish financial equity between the two parties: de facto partnership, doctrine of accession, or unjust enrichment.

Finally, with respect to the couple’s children, if there is a disagreement about how parental authority should be exercised, the parents may petition the family affairs court to establish custody.

Unlike cohabitation, a civil union (PACS) is a contract with clearly defined civil and tax effects, not a de facto union. The grounds for dissolution of a PACS are clearly outlined in the French Civil Code. There are four possible grounds:
– the partners’ joint declaration;
– one partner’s unilateral decision to break up; as with cohabitation, if the breakup is abusive and does harm, the victim partner may obtain compensation;
– marriage of a partner;
– death of a partner.

In practical terms, the dissolution is recorded by the notary or Civil Registrar in the locality where the Clerk of the Court of First Instance recorded the PACS and that person completes the publication formalities. Where third parties are concerned, the union is considered dissolved on the day the publication formalities are completed.

The partners liquidate their rights and obligations out of court.

If, at the time the PACS is terminated, the partners are unable to reach consensus on how to exercise parental authority over the couple’s children or how to resolve difficulties related to managing or dividing joint property, it will be up to the most diligent party to petition the family affairs court to decide the dispute.

Our firm will support you, both before you choose a type of union and while the union is dissolving, whether the matter is handled in or out of court, so that we can best meet your needs and help you fully understand the legal consequences of different types of unions.

In principle, a married couple can only end a marriage through divorce proceedings. However, there is another method of separation with different effects than a divorce.

In France, there are currently four grounds for divorce: mutual consent, fault, definitive alteration of conjugal life, and acceptance of the principle of marital breakdown.

Divorce by mutual consent is an amicable or consensual divorce. The spouses must be in agreement on the breakup of the marriage and the consequences of the breakup, with regard to both finances and any children. Since 2017, each party must be represented by legal counsel. This type of divorce is governed by an agreement drafted by the spouses and their lawyers. The agreement is a document drawn up by a lawyer and signed by the parties and their counsel, which is then filed in the records of the notary after the end of a 15-day cooling-off period, unless the couple’s child or children ask to be heard by the judge or one of the spouses is subject to a protective order, in which case the agreement must be approved by the family affairs judge during a hearing in which both spouses must be present. The divorce becomes final either on the date the agreement is filed in the notary’s records or it is finalized by the judge at the time of the hearing.

The three other types of divorces, however, are subject to litigation. The procedure is currently divided into two steps. The first step is for one of the spouses to file a petition for divorce in family affairs court, after which the spouses will be summoned to a hearing for a conciliation attempt, at the end of which the judge will rule on what provisional measures that will apply during divorce proceedings. In particular, enjoyment of the marital home will be assigned to one of the spouses, one of the spouses will be ordered to pay the other alimony as part of the duty of support, and methods of exercising parental authority will also be decided with respect to the couple’s children.

If the spouses agree on the principle of divorce, but disagree on the consequences of the divorce, they may sign a confirmation of acceptance of the breakdown of the marriage at this hearing, without having to account for the reasons behind it. In this case, when the second phase of the divorce begins, the spouses must then engage in proceedings on the basis of acceptance of the principle of marital breakdown. If the spouses do not agree on the principle of marital breakdown, they may base their petition for divorce on fault or on definitive alteration of conjugal life. Finally, at the end of the second phase, the family affairs court will rule on all the disputes between the spouses at the time the divorce is decreed and will order the matrimonial property regime to be liquidated.

This two-step procedure is set to change starting on September 1, 2020, but the current health crisis may cause the effective date of this reform to be postponed.

If, during the proceedings, the spouses come to an agreement on the consequences of their divorce, they may opt at any time to take advantage of the procedure for divorce by mutual consent.

If separated spouses do not want to divorce, they may move toward a legal separation procedure.

Legal separation is a procedure that results in a judgment that terminates the duty of a married couple to share a household, while allowing certain duties to continue, such as the duties of support and faithfulness. This procedure may be done in or out of court. Out-of-court separation follows the same process as divorce by mutual consent. Separated spouses may later divorce; separation may, as of right, be converted into divorce after two years.

A matrimonial property regime is a set of rules that governs the spouses’ assets, both between one another and with respect to third parties, during the marriage. These rules also determine how property is divided between the spouses if the union is dissolved.

Spouses may choose from four matrimonial property regimes or they may agree to a contractual regime. The choice is made prior to the wedding, but it is not unalterable; it can be changed during the marriage when changes occur to the assets of either of the spouses and/or the couple itself.

If the spouses do not sign a marriage contract, they are subject to a community of acquired assets regime. If they do sign a marriage contract, they choose a contractual regime, the most common of which are the separation of property, partnership of acquests, and universal community property regimes. Although the choice of regime causes the rules that apply to separation of property between the spouses to vary, the procedure to be followed is the same for all matrimonial property regimes.

When the marriage is dissolved, it is necessary to liquidate the matrimonial property regime. This step, which is often the last in divorce proceedings, determines each of the spouses’ rights to common or joint property.

Our firm, with the help of partner notaries where needed, will guide you through the process of creating an amicable liquidation settlement.

If spouses cannot come to an agreement, the family affairs court will need to intervene through a liquidation and division procedure.