Divorce is a daunting prospect, made worse in France by a different language and legal system.
Divorce is a daunting prospect, made worse in France by a different language and legal system.
COMING to live in France is the realisation of many couples’ dreams. Realising one’s dreams however does not necessarily guarantee against the breakdown of marriages.
The number of separations and divorces of foreign nationals living in France are probably as high as across the rest of the population and broadly happen for the same reasons.
However, I have personal experience of cases where one spouse’s personal desire to live in France has overwhelmed the other’s resistance to the idea only so long as it has taken for the novelty to wear off – so the very fact of coming here can be the reason for some breakdowns.
Divorce is daunting whatever the circumstances. Facing the prospect of divorce in a French court is sometimes enough to send foreign spouses rushing back to their country of origin where they at least expect to be able to understand (some of) the language.
The question is whether returning to square one is either necessary or even advisable.
One case where the French courts can be of no help at all is that of a British civil partnership: only the courts of the country where the couple were partnered, can dissolve their bond.
In other cases, the French courts have jurisdiction if the couple is ordinarily resident here, if the defendant spouse has remained resident here after the break-up or if the defendant spouse is French and the couple has lived here at some stage.
Indeed, the British courts (to take only the UK as an example) will not generally have jurisdiction over a British couple who remain resident in France, it will be necessary for one or both of the spouses to re-establish residence in the UK if they wish the courts there to deal with the divorce. This generally requires at least six months’ residence.
Provided that in the particular circumstances the courts here will accept jurisdiction, then in general the proceedings will be no longer, nor more expensive than elsewhere, often quite the contrary.
If the couple own real estate in France (which is almost always the case) the property settlement can only be effectively dealt with by the French courts anyway, as a foreign court can only make an order “in personam” (against a person) and cannot make a directly enforceable order in relation to the property. For example, a British court cannot order the sale of a French property, it can only order the (British) owner to sell it and fine them if they do not.
Also, where the couple have children under 18 who remain in France, it will almost always be inappropriate to ask a foreign court to adjudicate on matters like custody and maintenance.
An application for divorce is made by one or both of the spouses to the tribunal de grande instance (high court) in the district where they have their matrimonial home.
There is no such thing as a DIY divorce in France; the application must be presented by an avocat (barrister). It does not matter that the couple are foreign nationals, or that they may have married in another country; the court here will deal with the divorce under French rules.
Only the property ownership aspects of the separation may be influenced by the law of the place where the couple entered into their marriage.
In most cases concerning British couples, the rule of English law which applies is that of separate ownership of property (séparation de biens). This means that most British couples owning property in France do so as tenants in common (en indivision) and each will in principle be entitled to one half of the title to property registered in the joint names.
The scope of this article cannot cover more complicated circumstances such as where, for instance, one spouse is the only name on the title but the other has contributed to its purchase or improvement.
However, the court can take notice of such complications and indeed only a French court can do so effectively.
If the couple can, with or without the assistance of their lawyer, agree on all aspects of the process then a divorce by consent (par consentement mutuel) is quick, easy and relatively cheap.
Matters to be agreed would include the divorce itself, the property settlement, provisions for dependent children and any capital sum or on-going maintenance and/or pension apportionment for one of the spouses.
In this case a single avocat may be instructed by both parties (although each may have his or her own if preferred) and will prepare a comprehensive agreement for them to sign.
This will then be submitted to the court with a simple application for a divorce decree, which will be granted at a single hearing taking no more than a few minutes of a magistrate’s time.
A further step towards the “quickie” divorce will, it is expected, shortly be implemented: couples who have agreed to divorce by consent and who have no minor children, will no longer be required to attend a court hearing at all.
After a divorce by consent is granted (usually in a few weeks), the agreed property settlement is implemented by the parties’ designated notaire. It is usually the most expensive part of the proceedings as, apart from the notaire’s fee, duty at 1.1% is payable on the assets apportioned between the parties.
Cash and movables should therefore, as far as possible, be dealt with directly between the parties rather than in the terms of the deed of settlement.
If either of the parties refuses the divorce or the proposals made concerning custody and maintenance for children or property matters, then the divorce application will be made by one spouse issuing proceedings against the other. Each party to contested divorce proceedings has his or her own lawyer.
Initially the application to the court does not detail the reasons for the marital breakdown. This allows the other party to accept the principle of the divorce application at any time during the process, thus relieving the court of the necessity to determine who is at fault. Initially the court will set a date for a conciliation hearing. Here, the court will order separate residence and make provisional arrangements for maintenance, custody of children etc.
The applicant will then usually be given consent to issue the divorce petition. If the other party agrees to the principle of the divorce, then either party will be given the right to issue the final application which will generally be heard at least three months later.
In the meantime, the lawyers will attempt to hammer out a full agreement on property, children and other ancillary matters. If they are unable to do so, the court will adjudicate on these matters and generally appoint a notaire to deal with the property settlement.
If the defendant does not agree to the principle of the divorce, the applicant has to show evidence of the reasons for the breakdown of the marriage (desertion, adultery, cruelty, two years’ separation or more etc) and the defendant will then have the opportunity to dispute the claims and possibly counter-claim that the breakdown is the applicant’s fault.
If one party is found to be at fault, the court may (but does not have to) award the other damages.
Whatever the grounds for the divorce and whether or not there is fault involved, the court may make a prestation compensatoire (property adjustment order). The object of this is not (contrary to a current English tendency) to split all the couple’s assets down the middle, but is to compensate the “weaker” partner by a capital award (rather than by on-going maintenance) in the event that the breakup will have an unfair impact on their living standard as compared with their previous standard of living and/or the other partner’s property and means.
The court will take account of circumstances, set out in the Civil Code, such as the length of the marriage, age and health of the spouses, their professions, qualifications, earnings and pension rights and estimated personal assets after the property settlement.
Only a local lawyer well versed in the practice of the local court will be able to give a competent estimate of what, if any, property adjustment order is likely.
This difference in practice between French and English courts on this subject may well be seen as good reason to chose the latter over the former, or vice versa depending on one’s standpoint.
However, be aware that once the choice is made to sue in one country, it is impossible to ask the courts in the other to review the decision made under the laws of the first.
Under European regulations, divorce judgments and most ancillary orders obtained in one EU country are automatically recognised in all others and may be enforced throughout the EU.
Gerard Barron is a qualified English solicitor and French avocat. He lives in Boulogne-sur-Mer, holds dual nationality and is Hon British consul. He was appointed vice-president of the Pas-de-Calais bar this year, thought to be a first for a UK lawyer in France.
Website offers support for women left alone in France
A BRITISH woman from the Charente whose husband returned suddenly to the UK, leaving her in France, has set up a site to support others.
WAIFS (Women Alone In France) 2010 is for English-speaking women who find themselves unexpectedly alone after a move to France, due to divorce, separation or bereavement. Though men on their own can contact her as well, founder Marie-Louise Sawyer says it is most often men who find the “French dream” sours and want to leave.
“They often cope worse with the language and miss family in the UK,” she said. To generalise – the women tend to do the shopping and mix with locals through activities with the children, whereas the men are often at home, doing up the house.”
She has learned about the French system through coping on her own and also seeking a divorce here.
She said: “Women struggle, because of not having good enough language skills, to find out what help is available but also just from not knowing the system and who to ask. They end up with financial problems and can’t feed their families.
“I have links with professionals who can advise and I can explain about going to the caf [family allowance centre]or Cpam or getting free food from the Restos du Coeur. Or they might not know that they may qualify for a reduction on their taxe d’habitation.”
Ms Sawyer believes divorcing in the French system will benefit her. Since she (as a property agent) was the main breadwinner, the UK courts would give her husband a larger share-out, she believes, whereas, she said, French ones look more at what belongs to whom.
See http://tiny.cc/waifs or email firstname.lastname@example.org
Look after the children's future
USUALLY both parents in divorce retain ‘parental authority,’ ie. they have the right to be consulted in key decisions affecting the child.
Both also remain financially responsible, bearing in mind their respective means.
Key matters to be decided – by mutual agreement or judicial ruling – are where the child will have résidence habituelle (usual residence) and a pension alimentaire (maintenance payment) to be paid by the parent who does not have custody, often until the child is 18.
One parent may have custody and the other a droit de visite et d'hébergement (visiting rights and rights for the child to stay), for example one weekend in two plus half the school holidays.
It is also possible to have alternate residence in which case the periods must be agreed, eg. a week, a month or three months.
In theory alternation is preferred, but the judge may decide what is in the best interests of the child, for example by using a social worker’s report and speaking to the child.
There is no official pension amount – it is fixed according to the parent’s means.