Sources of family law
French family law is laid down in articles 144-487 of the Civil Code (’Code Civil’, CC), which is the primary source of family law. Case law is also important and can be found in various reviews. Cases of the Cour de Cassation are reported in these reviews and in the Bulletin de la Cour de Cassation. Rules of civil procedure are contained in the Code of Civil Procedure, Book III.
Decisions of the Cour de Cassation (the French Supreme Court) have greater weight on the decisions and usually applied by judges in lower courts, judges are not bound by previous decisions or by decisions of the higher courts. In a conflict with a decision of the Cour de Cassation, a decision of the Cour d’Appel may be quashed. Assemblee Pleniere i.e., a special formation of the Cour de cassation are binding on Cour d’Appel, which then must judge the case again in the way decided by the Cour de Cassation.
In France, there is no ‘family court’. Family law cases are heard in ‘tribunaux de grande instance’ (local civil courts of first instance), by judges hearing family matters (‘judges des affaires familiales’, JAF), e.g., divorce, judicial separation and ancillary matters.
In the children’s courts (tribunaux our enfants) judges (‘duges des enfants’) specialise in hearing child protection cases and cases of offences committed by minors.
Appeal from a tribunal de grande instance to the appropriate Cour d’Appel (on the merits), and then to the Cour de Cassation in Paris (on law only).
Jurisdiction of French court is determined by the place where the family and the children live, in the field of family matters. In case of no child in the family, it is determined by the place where the defendant lives (‘ratione loci’). The place where the defendant lives is the place where he or she has his or her place of residence.
In European matters, the rules of European regulation 1347/2000 of 30th May 2000, in force since the 1st of March 2001, give jurisdiction to different possible fora. The main criterion of jurisdiction is focused on the habitual residence of the family.
Adjudication of disputes
Case can be referred to the whole tribunal de grande instance, though the family judge usually sits alone. At the request of the parties, referral is mandatory. Proceedings take place within a semi-accusatorial system, in which the judge has jurisdiction to intervene to order enquiries, to grant the parties an extension of time or to compel discovery of documents and so on. Cases relating to divorce, parental authority and ‘tutelle’ (guardianship) are heard in camera, as is any other case dealing with private life.
Parties can make out-of-out agreements (e.g., in respect of financial provision) but not in respect of a change of status.
An ‘avocat’ represents a party, on behalf of the client; avocat gives advice and pleads in the tribunal de grande instance. On the basis proceedings in the Cour d’Appel only, an avocat can give advice and pleads. In the Cour d’Appel an ‘avoue’ acts on behalf of the client.
An avocat is approached by foreign lawyers. Bar associations provide the official list of lawyers specialised in family law and ‘law of the persons’ (including family law). An association of French family lawyers is found in Paris (Association des avocats de la famille); Paris Bar provides the information.
‘Notaires’ (notaries) do not deal with administrative matters, e.g., conveyancing, drafting wills and pre-nuptial agreements, and winding up matrimonial property under the appropriate property regime but they do not appear in court.
Legal aid offices (‘bureaux d’aide jurisdictionelle’) administer the legal aid, situated in each tribunal de grande instance. An applicant’s income, living expenses and property (except where it could not be sold or mortgaged without occasioning serious loss or difficulty) are taken into account while assessing his means. In contentious or non-contentious proceedings, legal aid is available for the plaintiff or defendant. Normal fees is due, when judgement is given in favour of a legally-aided party, which would have resulted in the refusal of legal aid. For both defended and undefended divorce, legal aid is available.
APPLICATIONS BY FOREIGNERS
To qualify for legal aid, a foreigner has to be a legally resident in France. However, the residence requirement can be waived in certain circumstances, e.g., in children’s cases or where residence has been refused. The application should be written in French. Non-resident foreigners made their applications to the Ministere de la Justice, and the application is further sent to the appropriate legal aid bureau. France is party to several bilateral legal aid conventions, and also the European Agreement on the Transmission of Applications for Legal Aid of 1977.
Article 102 of the Civil Code defines Domicile as a place where a person has his or her ‘principal establishment’. Although a person usually resides where he or she is domiciled, but he may have several places of residence, residence (the place where a person lives in a settled manner) may be different from a person’s domicile. However, there is no domicile without an actual residence, in France. Spouses can have different ‘domiciles’. For the purposes of the Brussels and Lugano Conventions on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, domicile is defined according to article 102 of the Civil Code.
THE CREATION OF A VALID MARRIAGE
If a marriage complies with legal requirements relating to the substance of marriage and to the celebration of marriage then only it is valid. A marriage is void or voidable if it fails to satisfy these requirements.
Legal requirements of a valid marriage
1. The parties must be respectively male and female.
2. The wife must be at least 15 years of age and the husband at least 18 years of age, although those under age can be given permission to marry by the Procureur de la Republique where special reasons exist, e.g., where the woman is pregnant. A draft law is currently being discussed, which would allow both men and women to marry only at 18.
3. Both parties must freely consent to the marriage. Where consent is lacking the marriage may be set aside e.g., on the ground of fear, duress or mistake.
4. Parental consent to the marriage is needed where a party is a female minor. Consent must be given by both parents, or, where a child’s parentage has not been established, by the ‘conseil de famille’ (family council).
5. The parties to the marriage must not be within the prohibited degrees of relationship. A marriage is prohibited between: mother-in-law and son-in-law; father-in-law and daughter-in-law; stepfather and stepmother and stepdaughter/stepson. In the case of stepfather/stepmother and stepdaughter/stepson permission to marry can be granted by the President of the Republic, provided the marriage which created the family relationship was terminated by death. There is no prohibition between brother-in-law and sister-in-law.
6. A party must not be already married.
The same prohibitions apply to adoptive relationships.
In accordance with prescribed formalities, a marriage (civil or religious) is solemnised before the appropriate civil authorities. An ‘officer d’etat civil’ (the municipal magistrate in charge of the register of Births, marriages and deaths, i.e., the mayor or his delegate) can celebrate the marriage provided one of the parties has resided for at least one month in the town where the marriage is to be solemnised.
At least 10 days before the celebration of marriage, notice of marriage must be published at the Town Hall entrance, this is to allow any impediment to the marriage to be declared. Where reasons exist, notice can be waived by the Procureur de la Republique.
The opposition of a marriage can be made by: parents where there is a legal impediment to the marriage; the Procureur de la Republique in the case of a ‘sham marriage’ (e.g., one entered for the sole purpose of acquiring French nationality); and the undivorced spouse of a party to the marriage.
A doctor’s certificate (issued within the previous two months) certifying that he or she had a medical examination and a birth certificate (issued not more than three months previously) must be provided by each party to the municipal magistrate. In case of a pre-nuptial agreement entered by the parties, a certificate must be provided to that effect. As must proof of termination of a pre-existing marriage, parental consent must be given wherever it is necessary.
The Town Hall of the town where one party is domiciled or resident and in the presence of two or more witnesses, solemnisation of the marriage takes place. Marriage certificate is issued by the municipal magistrate in charge of the Register of Births, Marriages and Deaths.
Recognition of a foreign marriage
If a foreign marriage has been celebrated in accordance with the formality requirements of the law of the country where it was celebrated (lex fori), it is recognised as valid in France. A notice of the wedding must be published in France, where two French nationals wish to get married abroad. Failure to do so is not a criminal offence but could be a ground for nullity, though very seldom used except in cases of fraud.
A marriage is recognised as valid in France, if it is celebrated by consular authorities, provided both spouses have the same nationality as the consul and the consul has jurisdiction to celebrate the marriage according to the law of his country.
Nullity of marriage
The area in which the defendant is domiciled or resident, nullity petitions are heard by the tribunal de grande instance of that area.
Grounds for nullity of marriage are: lack of consent; lack of physical capacity; bigamy; or the parties being within the prohibited degrees of relationship.
It can be ‘absolute’ or ‘relative’.
A party to a marriage can only apply for the petition ‘nullite relative’, except where a party to marriage is a minor when the other spouse and the minor’s parent(s) can apply. Within five years of the alleged defect, a petition must be brought.
Petition for ‘nullite absolue’ can be brought by any person with a financial or moral interest. When the marriage was clandestine or a petitioner alleges the municipal magistrate lacked jurisdiction, a judge has the discretion to grant a decree.
EFFECT OF DECREE
The effect of a decree of nullity (‘relative’ or ‘absolute’) is that the marriage is void ab initio, with the exception of a putative marriage (i.e., one where a spouse married in good faith) which is void from the date of the decree of nullity.
FINANCE, PROPERTY AND CHILDREN ON NULLITY
A party is not entitled to the same orders for financial provision as a party on divorce, when the marriage is annulled, except in the case of a putative marriage. The distribution is done as if there had been a bogus relationship between the parties. The parental authority is decided by the judge and any child to the marriage is considered legitimate.
For the innocent spouse, equitable distribution is applied in nullity matters.
LEGAL CONSEQUENCES OF MARRIAGE
It is the duty of both spouses to live together, to be faithful to each other and to provide each other with help and assistance. Citizenship and ownership of the property is also affected by the marriage.
ACQUIRING FRENCH CITIZENSHIP BY MARRIAGE
Marriage has no legal effect (de lege lata) on the spouses’ citizenship, but a foreign or stateless person who marries a French citizen can acquire French nationality by making a declaration to a ‘juge d’instance’, provided that the spouses have been married and lived together for at least one year and are still living together and the French spouse has not lost French nationality. If both parents are living together and a child is born before or just after the marriage then term of one year is not required.
On the ground that a foreign spouse is unworthy of French nationality or has been proved to be unable to adapt to France or French society, the France government can oppose such an acquisition of French nationality.
CITIZENSHIP OF CHILDREN
By descent or by birth, French citizenship can be acquired by a child. If one parent is French citizen then the child will also be of French citizenship, whatever is the place of his or her birth. A child born in France is a French citizen at the age of 18 if, at that time he or she is living in France, expresses his or her intention to acquire citizenship and has lived in France for at least a continuous period of five years after the age of 11. Schools, courts and local administrations give information on the ways to acquire French citizenship.
The determination of the citizenship of an adopted child is made in same way. He or she will be considered as a French citizen if his parent, or one of them, is French, and if not, will be able to ask for French citizenship at the age of 18, provided he or she fulfils the conditions as stated above.
Marital property rights
In respect of their property rights, spouses can make pre-nuptial property agreements. The Civil Code rules are applied and provide for community of acquisitions where spouses make no such agreement.
According to parties’ respective resources, unless a pre-nuptial agreement states otherwise, it is the mutual duty of spouses to contribute to spousal and child maintenance and household expenses. To provide reasonable maintenance for him or herself and/or for any child, an order compelling the order spouse can be applied by a spouse to the judge.
Parental authority (‘autorite parentale’)
Parents have parental rights and duties to ensure the proper upbringing of their children (legitimate or illegitimate). Children are maintained by the parents and parents should give them sufficient moral care and physical support. It is the duty of the parents to continue their duties until their child reaches majority (18 years of age) or finishes full-time education.
FINANCIAL PROVISIONS DURING MARRIAGE
Spouses are jointly and severally liable for housekeeping expenses and expenses incurred for their children’s education. An action against either spouse can be brought by a creditor. When substantial credit purchases are made without the other spouse’s approval, there is no joint and several liability.
The family judge can make urgent order to protect the interests of the spouse, where a spouse has failed to comply with his or her financial obligations. The order can last for up to three years. There must be a mutual consent of both spouses to the sale or the disposal of the family home or its furniture. The judge can intervene to or authorise an act which would normally be necessary or prohibited on an asset belonging to a spouse. If a spouse is failed to comply for more than two months with a court order to pay periodical payments to a child commits a criminal offence.
When the financial duties towards the other spouse and/or any children are not performed by a spouse, lead to a ground for divorce or judicial separation.
Pensions and tax
When a spouse dies, the surviving spouse entitled to a part of the deceased’s pension rights (pension de reversion: 50% to 70% if the deceased spouse was a civil servant). Spouses are not taxed separately, although a spouse can opt for separate taxation in certain circumstances.
Social welfare benefits
There is an availability of various social benefits for the French nationals and foreigners. A foreigner who is legally resident in France is in the position as a French person, providing he or she is working in France or dependent on a person who benefits from social security. Illness, invalidity, old age, death, widowhood and maternity are covered by ‘Assurances sociales’. The provision of these benefits is for those with insufficient means to live.
PROPERTY DURING MARRIAGE
The Civil Code lays down a regime of community of ownership of matrimonial property (‘regime matrimonial’), in the absence of a pre-nuptial agreement. By opting out of this regime, spouses can make a pre-nuptial agreement, all spouses remain subject to a ‘regime primaire’, it is a compulsory basic property regime laid down by the Civil Code which makes provision in respect of financial contribution to household expenses, to the family home and upbringing of children.
Spouses have freedom to open a bank account and deposit or withdraw money from the same. Spouses are free to opt any occupation of their choice and make earnings out of it. Contribution of each spouse to household expenses and for the maintenance of the children is necessary.
The Civil Code regime of matrimonial property
The system of matrimonial property in France is that of community of gains, whereby only property acquired during marriage, other than property acquired by gift or inheritance, is held in common.
There are three kinds of matrimonial property:
- property belonging to each spouses on equal terms;
- gifts and inheritances acquired during marriage; and
- property belonging to the community.
On equal terms, property belonging to the community belongs to both spouses jointly and administered by both. Acts of ordinary administration of community property are carried out by either spouse. Important transactions related to property such as sale, lease or mortgage are administered by both spouses.
The matrimonial property regime must be wound up on death or divorce.
Pre-nuptial property agreements
A pre-nuptial marriage agreement is made by the spouses. About 10% of the spouses go for pre-nuptial agreement, that too when large and important assets are involved, especially on second marriage. A notaire who can give the parties legal advice, before him an agreement is made.
In order to avoid some of the consequences of the Civil Code standard matrimonial property regime, such agreements are made. The parties might agree to have separate estates in the agreement, whereby each spouse remains sole owner and administrator of his or her own property whether or not acquired during marriage. The agreement might make provision for unequal division of property should the spouses divorce, or make provision for what is to happen on death, provided that at the date of death the amount of property involved does not exceed the ‘reserve’, i.e., that share of property that cannot be disposed of freely. A system of ‘deferred community’ can also be opted by the parties, although, each party is free to acquire or dispose of his or her property, but any gain or surplus is divided equally between the parties after the termination of marriage. Spouses, however, cannot by agreement opt out of the basic property regime, under which they have a duty to make financial contribution to household expenses, upbringing of children and the family home.
There is an option of ‘universal community’ for the spouses, in this; all assets belong to both regardless of when or how they were acquired. From separation to ‘universal community’, spouses change after the age of 60 and for tax reasons.
Provision can be made by the spouses in the agreement for the administration of property.
The amendment of pre-nuptial agreement can be made during marriage, it can also be amended after two years of marriage if in the interests of the family and provided any amendments have been made before a notaire and have been approved by the tribunal de grande instance.
The Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes applies in France. It enables persons married abroad and who settle or buy property in France to adopt a new system of financial relationship with limited formalities, either for their worldwide assets or solely for their French properties.
The matrimonial home
A spouse cannot sell, let or mortgage the matrimonial home without the consent of the other spouse. A judge can authorise the transaction, if the consent is withheld unreasonably. Provided that, it is consistent with the family’s interests, although, according to case law, matrimonial home which is owned by a spouse is entitled to be left as a legacy to someone else by him or her.
A transaction in respect of the matrimonial home entered into by one spouse without the consent of the other spouse is voidable on an application by the latter, provided the application is brought within one year of the day on which the applicant spouse became aware of the transaction.
In case, the matrimonial home is rented, the lease is considered as having made with both spouses, irrespective of the pre-nuptial agreement between the spouses. Lease continues with the surviving spouse or any children, on the death of one spouse.