French Divorce for Foreigners
Two non-French nationals may divorce in France if the "family home" is located in France, or failing that, if the parent with whom the minor children live is resident in France, or again, failing that, if the person who has not taken the initiative of the divorce is domiciled in France.
Generally, French law will apply to a divorce between foreigners who are both domiciled in France although a French judge can apply a foreign law when rendering a decision. In practice however this rarely happens because the parties would need to convince the French judge of the contents of that foreign law. Most French judges will feel more comfortable working with French law.
Types of French Divorce
There are four main types of divorce procedure in France: one hostile, two amicable and one for a prolonged separation:
Divorce by mutual consent (divorce par consentement mutuel): This is the simplest, fastest divorce whereby both parties agree on everything (custody of the children, contact with the other parent, asset split and so on). Before submitting a petition to the judge, the parties will have asked a notary to draft a document showing the agreed asset split (état liquidatif).
Note: The notary’s participation is only compulsory if the assets comprise real estate, if not the parties can draft the asset split themselves. The judge will then simply order the divorce and rubber-stamp the asset split as submitted by the parties. If the judge considers that the asset split is unfair, they may refuse to approve the document, however this rarely happens in practice
Accepted divorce (divorce accepté): This is put in place when the parties agree that a divorce is inevitable, but have not reached agreement on the split of assets or questions relating to the children. The judge will therefore make these decisions for them
Contested or hostile divorce (divorce pour faute): This procedure involves a lengthy, often bitter battle, to demonstrate that the other party is responsible for the breakdown in the marriage
Divorce for prolonged separation (altération définitive du lien conjugal): This divorce procedure may be used where a couple have lived apart consistently for more than two years (before 2005, the separation period was six years).
The Two Stage Process
Except in the case of a divorce par consentement mutuel, divorces are obtained in a two-stage procedure.
Stage one: The judge will order the divorce, determine who has custody of the children and what financial support should be paid for the children and for the “impoverished spouse”
Stage two: The notary will then proceed with the division of assets
The party who does not have custody of the children will be ordered to pay financial support for the children even if their income is less than that of the custodial parent (contribution à l’éducation et à l’entretien des enfants). The judge assesses the amount due by calculating the needs and expenses of both parties.
The “impoverished” spouse also has the right to ask for additional financial support for their personal benefit. The judge will be asked to determine whether the divorce will create a disparity in the financial situation of the parties as well as the children's needs.
Example: A successful businessman and a wife who stayed home to raise their children: after the divorce, the businessman will still earn a more than adequate income and can look forward to retirement on a satisfactory pension (probably from private sources). His wife may be destitute and can therefore ask the judge to award her financial support (prestation compensatoire).
There is no fixed rule for calculating the amount of this financial support. Some criteria are laid down in the Civil Code, such as the duration of marriage, age of the parties, respective income of parties, whether one party stayed at home to look after the children and so on. The Civil Code states that the financial support should be paid as a lump sum.
Some financial guidelines have been published, but decisions vary between the courts. However most common is for a French judge to award between one third and one quarter of the wealthier party’s income and/or pensions for marriages of long duration (more than 20 years).
When calculating the prestation compensatoire, the judge does not normally take into account jointly held assets: even if one party has a right to half the value of a house, that same party may still ask for the prestation compensatoire if they satisfy the criteria.
It is also possible to pay the prestation compensatoire in kind.
Example: A husband who is ordered to pay his wife €200,000 by means of financial support may reach agreement with his wife that he will relinquish his €200,000 share in their €400,000 house
It is not the French judge’s function to split assets – this is done by the notary after the divorce.
Obviously there is little difficulty in splitting jointly held assets (for example, a house held "en indivision" will be split 50/50 unless the original purchase deed indicates a different percentage holding).
It should be noted that a notary does not have judicial power. They can suggest the way the assets should be split, but if the parties do not reach agreement then the case will return to court and only a judge can impose the division of assets.
The assets should be split in accordance with the matrimonial regime of the parties. However the marital regime normally corresponds to the regime applicable in the first country of residence after the marriage (unless the couple were obviously only living there on a short term basis).
- Example: A couple who married in England and immediately moved to France to take up permanent residence will be considered to be married under the French “community” regime (communauté légale) unless they entered into a prenuptial contract
The community regime (communauté légale) states that anything purchased after the marriage will be considered a jointly owned asset, whereas anything purchased before will be the property of the sole purchaser. The exception to this rule is donations and legacies which will remain the sole property of the beneficiary even if they are received during the marriage.
This community regime rule applies even if only one spouse works and so all the assets (movables and property) have been bought from one salary only. Under French law these assets will be considered jointly owned and shared accordingly.
Compensation may be claimed however if, for example, one party sold a home purchased prior to the marriage and invested that money in the family home purchased after the marriage.
The situation becomes more complicated if the parties consider that a foreign marital regime applies.
- Example: In theory the assets of a couple who married and lived in the UK prior to moving to France should be shared according to English law, which provides for equity to prevail.
It is rare for a French notary to split assets after a divorce in accordance with a foreign law. Although this scenario is not impossible, it would require the help of a notary with a good understanding of English and demonstrating to the notary the contents of English law on asset sharing (if the parties requested the application of English law).
It is more common for a French notary to proceed with the asset split in accordance with French law. As long as both parties are reasonably satisfied, the question of the applicable law will not arise.
- Information on the process for division of assets from Notaires.fr: Click here
- Comprehensive information (in French) from Easy Droit: Click here
- Comprehensive information (in French) from Service Public: Click here
Disclaimer: This article comprises an overview of the divorce procedure in France, but we do recommend you seek legal advice if you are thinking about divorce or are part of a divorce procedure.
Extract from angloinfo.com