Family Law 2024 Comparisons

Grounds for Divorce

In France, there are four grounds for divorce, applicable to both same-sex and opposite-sex couples.

• “Alteration définitive du lien conjugal” – when filing for divorce, the spouses must have ceased cohabitation for one year (Article 237/238 of the Civil Code).
• “Acceptation du principe de la rupture du mariage sans considération des faits à l’origine de celle-ci” – either or both spouses can request divorce without contesting the grounds. Once accepted, divorce cannot be retracted, even through an appeal (Article 233 of the Civil Code).
• “Divorce pour faute” – can be requested by one spouse when there is a serious and repeated violation of marital duties by the other spouse, making continued cohabitation intolerable (Article 242 of the Civil Code).
• “Divorce par consentement mutuel par acte sous signature privée contresigné par avocat déposé au rang des minutes du notaire” – mutual consent divorce by private agreement, countersigned by lawyers, and deposited with a notary (Article 229-1 of the Civil Code).

Grounds for Civil Partnership Dissolution

A civil solidarity pact can be dissolved through the death of one partner, marriage of the partners or one of them, or by joint declaration or unilateral decision of one partner (Article 515 of the Civil Code). Unlike divorce, there is no specific foundation for dissolution similar to divorce grounds.

Partners can dissolve the pact by jointly declaring it to the civil registry or the notary who recorded it. If only one partner decides to dissolve the pact, they must serve a unilateral declaration on the other partner and provide a copy to the civil registry or notary.

Divorce Process and Service of Proceedings

Out-of-court divorce

When spouses agree on divorce principles and consequences, they can formalise the agreement in a convention drafted by their lawyers, signed by both parties, countersigned by lawyers, and registered with a notary (Article 229-1 of the Civil Code).

Spouses cannot opt for mutual consent divorce if one of the minor children requests to be heard by the judge or if one spouse is under a protective regime (Article 229-2 of the Civil Code).

The draft divorce agreement, along with all its annexes, must be notified to the parties at least 15 days before the convention signing date to allow for reflection. On the signing day, parties and their respective lawyers must be present, and remote signing is not allowed.

Upon registration by the notary, compliance with all formalities is verified by the notary, including ensuring that children have been informed of their right to be heard, and the 15-day reflection period has been observed. The effects of divorce between the parties and third parties take effect in principle from the date of registration by the notary (Article 229-1 of the Civil Code).

Judicial divorce

Spouses can jointly or unilaterally seize the family court judge for divorce, with no minimum marriage duration required. However, if one spouse seeks divorce for “altération définitive du lien conjugal”, a one-year separation period is necessary, assessed at the time of divorce pronouncement (Article 1107 Code of Civil Procedure).

Joint application

In the case of a joint application, spouses submit a joint petition to the court, expressing their agreement on divorce and its consequences, seeking approval from the judge. This allows spouses, particularly in an international context, to obtain a divorce judgment even if they agree on all aspects.

In a joint application, the family court clerk sends the parties a summons to an orientation and provisional measures hearing where the parties and their lawyers can express their agreement.

Unilateral application

For a unilateral application, one spouse initiates the process through a divorce summons sent to the clerk, outlining provisional measures during the divorce procedure and the divorce pronouncement consequences. The summons must include, on penalty of nullity, the date, time and location of the orientation and provisional measures hearing. This date must be requested from the clerk before serving the summons to the defendant.

The petitioner must serve the divorce summons to the opposing party through a bailiff. To validly file the case, the petitioner must provide evidence of this service at least 15 days before the orientation and provisional measures hearing.

After this hearing, the judge issues an order on provisional measures, organising family arrangements until the divorce pronouncement. The judge also sets the date for the petitioner to conclude on the divorce’s merits, initiating the discovery period during which parties exchange evidence and arguments. At the end of this period, the judge schedules the pleading hearing.

Legal representation by an attorney is mandatory throughout the judicial divorce process.

Religious marriage and divorce

Religious marriages celebrated abroad can be recognised in France if the celebration complies with the law of the state where the marriage has been celebrated and is not contrary to French international public policy (eg, age of the spouses). In French law, a religious marriage must be preceded by a civil marriage, failing which, the minister of worship who conducts the marriage could face six months of imprisonment and a fine of EUR7,500.

Religious divorces pronounced abroad can be recognised in France if their effects do not violate French international public order, particularly gender equality.

Judicial separation (Articles 296 et seq of the Civil Code)

Legal separation (“séparation de corps”) allows spouses to remain married while terminating the duty of cohabitation. Legal separation is often sought by couples who do not wish to divorce for religious or cultural reasons.

Legal separation can be established by a private agreement deposited with a notary or by a court judgment. It can be requested on the same grounds and conditions as divorce (Article 296 of the Civil Code).

In case of legal separation, the duty of support persists, and the judgment of legal separation or the mutual consent legal separation agreement may stipulate that one spouse must pay alimony (“devoir de secours”) to the other (Article 303 of the Civil Code).

Legal separation always entails the separation of the spouses’ assets (Article 302 of the Civil Code).

Upon the death of one of the legally separated spouses, the surviving spouse retains the rights granted by law to the surviving spouse (Article 301 of the Civil Code), unless otherwise stipulated in the agreement.

The resumption of common life by the spouses terminates legal separation. However, to be opposable to third parties, the resumption of common life must be recorded by a notarial act or declared to the civil registry (Article 305 of the Civil Code).

When legal separation has lasted two years, one of the spouses can request the conversion of the legal separation judgment into a divorce judgment (Article 306 of the Civil Code). This also applies if legal separation has been mutually agreed upon. In this case, one spouse can request its conversion into mutual consent divorce.

Nullity

In the event of non-compliance with essential marriage conditions, the marriage can be annulled. However, to ensure the legal stability of personal status, only the most severe violations of validity conditions result in marriage nullity.

To secure the institution of marriage, not all nullities follow the same regime. Some are relative (can be raised by persons designated by law), and others are absolute nullities (can be raised by any person with an interest).

Thus, relative nullities (Article 180 of the Civil Code) include:

• lack of free consent from both spouses or one of them;
• the exertion of coercion on the spouses or one of them; and
• error regarding the person of the other spouse or their essential qualities.

In these cases, only the spouses or the one whose consent was not free, or the public prosecutor, can seek marriage nullity (Article 181 of the Civil Code). These grounds for nullity can only be invoked within five years from the marriage or from the spouse’s acquisition of full freedom or acknowledgment of the error.

Also, the incapacity of one spouse to contract marriage (Article 181 of the Civil Code) constitutes a relative nullity. In this case, the marriage nullity can be requested by those whose consent was required (father, mother, family council, ancestors) or by the spouse who needed to consent. This action is also subject to a five-year limitation period from the time the person whose consent was required became aware of the marriage or from the spouse reaching the age to consent to marriage independently.

Finally, absolute nullities (Article 184 Civil of the Code) include:

• legal incapacity – if the marriage was contracted before the spouses reached the age of 18;
• lack of consent from one of the spouses;
• absence of one spouse during the marriage celebration in France or abroad;
• bigamy – if a second marriage was contracted before the dissolution of the first;
• incest – if the marriage was celebrated between ascendants, descendants, or allied individuals, in direct line, in the same line, or between members of the same sibling group, or between a nephew/niece and their uncle/aunt; and
• incompetence of the civil registrar.

In these cases, the marriage can be challenged within a 30-year period from its celebration by the spouses, any person with an interest, or the public prosecutor.

Jurisdictional Grounds

French courts apply the provisions of Regulation (EU) No 2019/1111 (“Brussels IIb Regulation (recast)”) for proceedings initiated after 1 August 2022, and those of Regulation (EU) No 2201/2003 (“Brussels IIb”) for proceedings initiated before that date.

According to Article 3 of the Brussels IIb Regulation (recast), French courts have jurisdiction over the divorce or legal separation of same-sex or opposite-sex spouses if France is:

• the territory with the location of:
1. the habitual residence of the spouses;
2. the last habitual residence of the spouses insofar as one of them still resides there;
3. the habitual residence of the defendant;
4. in the event of joint application, the habitual residence of either spouse;
5. the habitual residence of the petitioner if they resided there for at least one year immediately before filing the petition; or
6. the habitual residence of the petitioner if they resided there for at least six months immediately before filing the petition and the petitioner is a national of that member state; or
• the nationality of both spouses.

If the above criteria do not establish the jurisdiction of French courts, Article 6 of the Regulation states that each member state’s domestic law governs this jurisdiction. In France, Articles 14 and 15 of the Civil Code provide a jurisdictional privilege, allowing French courts to have jurisdiction if the petitioner or the defendant is a French national.

These provisions do not apply to the dissolution of the French civil partnership (“Pacte de Solidarité Civile”), as its dissolution occurs outside any judicial process (see 1.1 Grounds, Timeline, Service and Process, “Grounds for Civil Partnership Dissolution”).

Domicile, Residence and Nationality

In France, the concepts of habitual residence and nationality are crucial for determining French court jurisdiction in divorce/legal separation matters, as these are the connecting factors favoured by European regulations. Thus, the following apply.

• Habitual residence – French courts consider the concept of habitual residence as an “autonomous concept of European Union law”. They apply the jurisprudence of the Court of Justice of the European Union regarding the definition of a person’s habitual residence under European regulations. Therefore, the Court of Cassation has stated that habitual residence is “defined as the place where the individual has established, with the intention of giving it a stable character, the permanent centre of their interests.”
• Nationality – a person’s nationality is assessed according to French law criteria.
• Domicile – French law does not recognise the notion of domicile.

Contestation of Jurisdiction

The jurisdiction of French courts can be contested by either party or by the judge. The lack of jurisdiction of the court must be raised, under penalty of inadmissibility, before any defence on the merits or an objection.

Forum and Staying Proceedings

A party can request the French court to stay proceedings pending the decision of a foreign court on its jurisdiction. The legal basis, however, differs depending on whether the states involved are two EU member states or an EU member state and a third state.

Lis pendens between EU member states

Article 20 of the Brussels IIb Regulation (recast) stipulates that if two divorce/legal separation proceedings have been initiated between the same parties, the secondly seised court automatically suspends its proceedings until the jurisdiction of the firstly seised court is established. Once the jurisdiction of the firstly seised court is established, the secondly seised court must defer to the firstly seised court.

Lis pendens between France and a third state

In the absence of bilateral agreements governing lis pendens, Article 100 of the Code of Civil Procedure will apply. The existence of a situation of lis pendens thus requires three elements:

• first, at the time the French court is seised, another process must already be pending before the foreign judge;
• second, the lis pendens situation necessitates that the courts are seised with the same dispute, which presupposes the triple identity of parties, cause and subject matter; and
• lastly, it is essential that both French and foreign courts have jurisdiction.

If the same dispute is pending before two equally competent courts of the same level, the court secondly seised must defer if either party requests it or of its own accord.

The factor considered by French courts is therefore chronological. Hence, the date of seising of the court is crucial. In France, following the new divorce procedure, the date of receipt of the summons by the process server of the requesting state marks the beginning of the divorce procedure and the seisure of the French jurisdiction.

However, it is well-established jurisprudence that French courts may refuse to stay proceedings if the decision to be made abroad is not likely to be recognised in France. The admissibility of the foreign decision in France is assessed based on the criteria set by the “Cornelissen” decision (indirect judicial competence of the foreign court rendering the decision, absence of fraud, absence of conflict with French international public order).

Grounds for Jurisdiction in Financial Proceedings

The financial consequences of divorce in France encompass, on one hand, financial support obligations and, on the other hand, the settlement of the matrimonial regime.

Jurisdiction for maintenance obligations

Jurisdiction over support obligations in France is determined in accordance with Regulation (EC) No 4/2009 of the Council of 18 December 2008, known as the “Maintenance Regulation”.

Spouses can designate the French jurisdiction as competent to handle their dispute regarding support obligations if (Article 4):

• one of the spouses has their habitual residence in France;
• one of the spouses holds French nationality;
• the French jurisdiction is competent to grant the divorce (see 1. Divorce); or
• the spouses’ last common habitual residence was in France and lasted at least one year.

If the spouses have not designated the competent jurisdiction to decide on support obligations, the French judge has jurisdiction to address support obligations between spouses if (Article 3):

• the defendant has their habitual residence in France;
• the support creditor has their habitual residence in France; or
• the French judge also has jurisdiction to grant the divorce, except if their jurisdiction is solely based on the nationality of one of the parties.

As a subsidiary provision, if no judge within the European Union has jurisdiction, the French judge may have jurisdiction if:

• the spouses share common French nationality (Article 6); or
• a procedure cannot reasonably be conducted or initiated in a third state, and the dispute has sufficient connection with the member state of the court seised (Article 7, forum necessitatis).

Jurisdiction for matrimonial property regime

Jurisdiction concerning the matrimonial property regime is determined in France under Regulation (EU) No 2016/1103 of the Council dated 24 June 2016, known as the “Matrimonial Property Regimes Regulation”.

Prospective spouses can designate the French jurisdiction to oversee the settlement of their matrimonial property regime if French law applies to their matrimonial regime or if the marriage was celebrated in France (Article 7).

If the spouses have not designated the competent court to decide on the settlement of the matrimonial property regime, distinctions are made.

• If the settlement of the matrimonial property regime occurs simultaneously with the divorce (Article 5) – the French judge having jurisdiction to rule on the spouses’ divorce will also have jurisdiction over matters related to the dissolution, settlement and distribution of the spouses’ matrimonial property regime. However, this extension of jurisdiction will be subject to the spouses’ agreement when the French judge’s competence for divorce is based on the following criteria:
1. the petitioner’s residence in France for at least one year or six months if they are French; or
2. rules of residual competence and the application of French domestic law rules.
• If the settlement of the matrimonial property regime occurs after the divorce (Article 6) – the French judge will have jurisdiction over the settlement if:
1. the habitual residence of the spouses is in France;
2. the spouses’ last habitual residence was in France, and one of them still resides there;
3. the defendant’s habitual residence is in France; or
4. both spouses hold French nationality.

These criteria are hierarchised.

When no court of a member state has jurisdiction, French courts will have jurisdiction as long as an immovable property of one or both spouses is located in France (Article 10). The jurisdiction will be limited to this property.

Contestation of Jurisdiction

The jurisdiction of French courts can be contested by either party or by the judge. The lack of jurisdiction of the court must be raised, under penalty of inadmissibility, before any defence on the merits or an objection.

Lis Pendens

A party has the option to seek a suspension of proceedings in the French court while awaiting a decision from a foreign court regarding its jurisdiction. However, the legal foundation for this varies depending on whether the states in question are two EU member states or involve an EU member state and a third state.

Lis pendens with a member state

Under the Matrimonial Property Regimes and Maintenance Regulations, there exists lis pendens when two different courts of EU member states are seised with claims made by the same parties, with the same subject matter and cause (Regulation (EU) No 2016/1103, Article 17 § 1, and Regulation (EC) No 4/2009, Article 12).

In this scenario, both regulations dictate a similar approach:

• initially, the court of the subsequently seised member state suspends proceedings until the jurisdiction of the first court seised is established; and
• subsequently, once the jurisdiction of the first court is established, the subsequently seised court defers to the first court.

Therefore, the crucial criterion is the date the court is seised. In France, following the new divorce procedure, the date of receipt of the summons by the process server of the requesting state marks the beginning of the divorce procedure and the seising of the French court.

Lis pendens with a non-member state

The previously outlined rules do not apply whenever the French judge is seised concurrently with courts of a non-EU State.

To address the lis pendens issue, it is necessary to determine whether there is an applicable rule of conventional origin (eg, Lugano Convention of 30 October 2007, Franco-Moroccan Convention of 10 August 1981, or Franco-Belgian Convention of 8 July 1899).

Failing an applicable rule of conventional origin, Article 100 of the French Code of Civil Procedure will apply (see 1.2 Choice of Jurisdiction, “Lis pendens between France and a third state”). In this scenario, the same solution applies: the second seised judge acknowledging the exception must defer to the first seised court.

Service and Process for Spousal Support and Compensatory Allowance

Spousal support (“devoir de secours”) and compensatory allowances (“prestation compensatoire”) are determined during the divorce proceedings (see 1. Divorce).

Regarding interim measures, spousal support for one of the spouses can be ordered at any time of the divorce proceeding (Article 212 of the Civil Code). However, it cannot extend beyond the dissolution of the marriage. Modification of spousal support, in amount or principle, can be requested throughout the procedure if new elements justify it (Article 1118 of the Civil Procedure Code).

As for substantive measures in divorce, only a compensatory allowance, often paid as a lump sum, can be determined. To assist the judge in determining the compensatory allowance, especially when identifying and valuing personal assets or incomes of one of the parties poses challenges (Article 255 9° of the Civil Code), an expert can be appointed for an expert opinion as part of the divorce procedure.

The duration of the divorce procedure, excluding appeals, generally ranges between two and four years depending on the complexity of the assets involved.

Service and Process for Liquidation and Division

The liquidation of the matrimonial regime can occur within the divorce proceedings or through a separate procedure after the divorce.

Post-divorce liquidation and division proceedings

Following the divorce, the spouses must settle their matrimonial regime. Initially attempted amicably, division becomes judicial only upon failure.

The judicial procedure for liquidation and division starts with a summons, which, to avoid dismissal (Article 1360 of the Civil Procedure Code), must contain:

• a summary of the efforts made by the parties towards an amicable division;
• a brief description of the assets to be divided; and
• the petitioner’s intentions regarding the distribution of assets.

The judicial procedure then varies depending on the type of division. In a simple division (“short process”), the judge orders the division when disagreements are straightforward:

• identification of the assets and liabilities to be divided;
• agreement or judicially fixed values of assets; and
• clear understanding of each party’s rights, including calculations of reimbursements and debts.

In cases where a simple division is not feasible, a complex division (“long process”) involves the judge referring to a notary for the liquidation and division operations and appointing a judge to oversee these actions (Article 1364 § 1 of the Civil Procedure Code). The notary has a year to carry out this task.

Upon the notary’s designation, parties are summoned, and a provisional liquidation statement is drafted based on available information. Each party can provide their observations on this statement.

If parties disagree with the liquidation statement, judicial division proceeds, and the notary submits both the liquidation statement and a statement of observations summarising each party’s stance to the appointed judge (Article 1373 of the Civil Procedure Code). The judge then resolves disagreements (Article 1375 of the Civil Procedure Code).

Liquidation during divorce proceedings

The divorce judge can also decide for liquidation and division of the spouses’ property interests during the divorce proceedings if either party requests it (Article 267 of the Civil Code).

Parties must prove the existence of remaining disagreements. This proof can stem from the report of the notary appointed for interim measures to prepare a liquidation project for the matrimonial regime (Article 255, 10° of the Civil Code).

Matrimonial Regimes

Choice of matrimonial regime at the time of marriage

Spouses have the freedom to choose their matrimonial regime. The liquidation rules for these different matrimonial regimes are determined by the Civil Code and the court does not have the capacity to regulate or reallocate assets or resources on divorce.

The legal matrimonial regime

Spouses may opt not to make an explicit choice and will then be subject to the legal regime of reduced community property (“communauté réduite aux acquêts”) (Article 1400 to 1491 of the Civil Code). This regime comprises the following asset categories.

• Common or acquired property, which includes assets acquired by the spouses separately or together during the marriage, including their incomes and the profits from their separate assets (Article 1401 of the Civil Code). Any property acquired during the marriage is deemed to be common property (Article 1402 of the Civil Code).
• Each spouse’s separate assets.

Upon the liquidation of the regime, claims (“récompense”) can be calculated.

• The community owes compensation to a spouse whenever it benefited from a separate property (Article 1433 of the Civil Code).
• The community is entitled to compensation whenever an expenditure was made by it for the personal benefit of a spouse (Article 1437 of the Civil Code).

The assessment modalities are determined by the Civil Code.

Conventional matrimonial regimes

Spouses can also choose one of the standard regimes organised by the law:

• separation of assets (“séparation de biens”) (Articles 1536 to 1543 of the Civil Code);
• participation in acquisitions (“participation aux acquêts”) (Articles 1569 to 1581 of the Civil Code); or
• conventional communities (“communautés conventionnelles”) (Articles 1497 to 1526 of the Civil Code).

Moreover, spouses can modify certain rules of existing regimes. In communal regimes, they can establish “matrimonial advantages” (“avantages matrimoniaux”) to alter:

• the consistency of the common mass – eg, a provision to convert separate property into common property (“clause d’ameublissement”), a clause to exclude a property or a category of property from the community (“clause de stipulation de propre”);
• rules regarding compensations in principle or their evaluation; and
• asset distribution upon death to favour the survivor – eg, a clause allowing the surviving spouse to withdraw a common property before any inheritance division (“clause de préciput”), complete allocation of assets to the survivor (“clause d’attribution intégrale”).

In case of divorce, these “matrimonial advantages” are maintained if they took effect during the marriage or automatically revoked if they were to take effect only upon marriage dissolution (Article 265 of the Civil Code).

Spouses can also modify separate regimes by changing rules regarding claims or by creating a limited community enclave for one or more assets (“société d’acquêts”).

To establish these contractual regimes, spouses must draw up a marriage contract that is a prerequisite before the marriage ceremony itself and must be notarised (Article 1394 of the Civil Code). Opting for the legal regime does not preclude such a prior contract, especially to include specific adjustments, although it is not mandatory.

The choice of matrimonial regime does not affect the effects of spousal separation regarding support obligations (alimony and compensatory allowances).

Changing matrimonial regime during the union

Married couples can change their matrimonial regime at any time after their union. For further developments, see the France Trends & Developments chapter in this guide (“Reform of matrimonial regime change process”).

Disclosure of Assets

Information obligation on spouses

An information obligation rests upon the spouses, who are generally required to provide the judge with “all information and documents necessary to determine benefits and pensions and to liquidate the matrimonial regime” (Article 259-3 of the Civil Code).

They are obligated to substantiate their asset and financial status, as requested by the judge, not only with “income statements, tax notices, and fiscal situation documents” but also with “supporting documents related to their assets and living conditions” (Article 1075-2 of the Civil Procedure Code).

Additionally, when a compensatory allowance is requested, they must provide a sworn statement to the judge certifying the accuracy of their resources, income, assets and living conditions (Article 272 of the Civil Code).

Judges typically draw all consequences from the failure to produce necessary information. Concealment of communal property by one of the spouses in a community regime is penalised and the spouse is deprived of all rights over the concealed property (Article 1477 of the Civil Code).

Information collection through third parties or experts

The judge can request information, without the ability to claim professional secrecy, from third parties such as banking institutions, other fund and asset depositaries, as well as the debtors of each spouse (Article 259-3 of the Civil Code).

When the financial situation of the spouses is difficult to understand, the judge may effectively seek help from an expert, either:

• from a qualified professional “to draw up an estimated inventory or make proposals regarding the settlement of the spouses’ financial interests” (Article 255, 9° of the Civil Code); or
• from a notary for the purpose of “elaborating a plan for the liquidation of the matrimonial regime and, incidentally, the division of the lots to be shared” (Article 255, 10° of the Civil Code).

The designated expert enjoys the same investigatory powers as the judge in executing their mission, as per Article 259-3 of the Civil Code.

Various asset identification tools

Multiple tools for identifying assets can be used.

• “FICOBA” (File of Bank Accounts and Similar) – It records all bank accounts held by an individual or corporation in France or abroad. It involves account opening, modification and closure operations but does not include actual transactions or the account balance.
• “FICOVIE” (File of Life Insurance Contracts and Capitalisation Contracts) – It references all life insurance and capitalisation contracts with insurance companies established in France.

A notary, authorised by a court decision, can access these files, especially within their expertise mission (based on Articles 255, 10° and 255, 9° of the Civil Code).

• The land registry, which centralises and publishes information regarding property ownership and cadastres – Any individual can request a copy of ongoing entries by filling in a form and providing specific information (cadastral references, owner’s name, etc).
• The trade and companies register, which compiles all individuals and legal entities engaged in commercial activities.

Recognition of Foreign Trusts

France does not recognise, within its domestic law, the mechanism of trusts and has not ratified the Hague Convention, of 1 July 1985, concerning the law applicable to trusts and their recognition.

However, jurisprudence does acknowledge the validity of trusts established abroad, provided they adhere to the following conditions.

• The trust must be established in accordance with the laws prevailing in the relevant country.
• It must not contravene French public policy.

The limitation of the effects of trusts in France often practically concerns the application of rules related to the reserved portion of the estate (“réserve héréditaire”) when French law applies to the deceased’s estate.

Spousal maintenance obligations between spouses may result from the payment of alimony during the divorce proceedings (“devoir de secours”) or the establishment of post-divorce spousal support (“prestation compensatoire”).

Alimony (“Devoir de Secours”)

During divorce proceedings, the judge may establish alimony for the benefit of one of the spouses (Article 255, 6° of the Civil Code). This alimony persists until the spouses are officially divorced by an irrevocable decision. It aims not only to secure the minimum essential for the recipient spouse but to maintain a similar standard of living between the spouses.

The determination of alimony follows specific criteria: it takes into account the recipient spouse’s needs and the marital standard of living, as well as the financial resources and expenses of each spouse. French law does not provide for any specific calculation. The determination of the amount is left to the discretion of the Family Court Judge.

Spousal Support (“Prestation Compensatoire”)

The purpose of spousal support is to offset, as much as possible, the disparity in the spouses’ living conditions resulting from the divorce (Article 270 of the Civil Code).

Spousal support is determined based on the needs of the recipient spouse and the resources of the other, taking into account their situation at the time of divorce and its foreseeable evolution. The judge has several elements to consider in assessing this disparity (Article 271 of the Civil Code):

• duration of the marriage;
• age and health condition of the spouses;
• their qualifications and professional situation;
• the consequences of professional choices made by one of the spouses during the marriage for child-rearing and the time still needed, or to prioritise the career of their partner at the expense of their own;
• the estimated or foreseeable assets of the spouses, both in capital and income, after the liquidation of the matrimonial regime;
• their existing and foreseeable rights; and
• their respective situations regarding retirement pensions.

As for alimony, French law does not provide for any specific calculation and the determination of the amount is left to the discretion of the Family Court Judge.

To be effective in France, prenuptial and postnuptial agreements concluded abroad must, on the one hand, comply with French international public policy and, on the other hand, to a certain extent, with French domestic public policy.

Compliance With French International Public Policy

Certain provisions of foreign prenuptial and postnuptial agreements may be deemed contrary to French international public policy. This notably includes most extrapatrimonial provisions inserted in these contracts.

In case of conflict with international public policy, only those specific provisions are, in principle, voidable. However, French courts may set aside the entire contract if it lacks provisions stating that the nullity of one of its clauses does not nullify the entire contract, or if the breach of public policy is such that the entirety of the contract is tainted.

Compliance With French Domestic Public Policy

Certain provisions of foreign prenuptial and postnuptial agreements may also be contrary to French domestic public policy. This occurs especially in contracts containing provisions that prearrange the financial consequences of divorce, which is not permitted under French law.

However, these provisions may, in principle, apply if they were established in accordance with a foreign law permitting such arrangements, and if the spouses validly chose that law to be applicable to their situation based on the criteria outlined in Article 8 of the Hague Protocol.

Nevertheless, it is important to note that French jurisprudence still disregards these contractual provisions based on international public policy grounds when their combination, in case of divorce, leads to a manifestly unfair or unjust outcome for one of the spouses.

In France, unmarried couples have the option of cohabiting or formalising their relationship through civil partnerships.

Cohabitation

Financial responsibilities between cohabitants

Cohabitants can enter into a cohabitation agreement, whose content is freely determined with the main purpose of organising their shared life and establishing financial rules (contributions to common expenses). However, this agreement does not create personal obligations between the partners, leading to the absence of financial compensation or support upon separation.

Joint ownership among cohabitants

Cohabitants are subject to joint ownership rules. Consequently, assets acquired during cohabitation are either personal to the purchaser or jointly owned by both cohabitants in the case of shared acquisition.

Upon separation, exiting this joint ownership requires initiating a sharing procedure, primarily through amicable means and, if necessary, through legal proceedings as part of a liquidation and division process (see 2.2 Service and Process, “Post-divorce liquidation and division proceedings”).

Civil Partnerships

Financial responsibilities between PACS partners

Partners in a civil partnership (PACS) must provide each other with “material assistance and reciprocal support” during their shared life (Article 515-4 of the Civil Code). However, upon dissolution of the PACS, partners cannot seek compensatory maintenance.

Property regimes

Partners in a PACS are generally subject to the legal regime of separate estates (Article 515-5 of the Civil Code). However, partners can opt for the joint ownership regime. In this case, the assets are shared equally, even if one partner finances them beyond their ownership share.

Upon separation, partners must come to an agreement on the division of their assets. In the absence of an agreement, the family affairs judge will have the authority to resolve their disputes (Article 515-7 of the Civil Code) through a liquidation and division procedure (see 2.2 Service and Process, “Post-divorce liquidation and division proceedings”).

Non-Payment of Alimony

When alimony remains unpaid, the creditor spouse can resort to a direct payment procedure to obtain the owed amount from a third party (employer, bank, etc) holding funds initially intended for the debtor. This procedure can be initiated as soon as the first instalment of unpaid alimony is due and is executed by a bailiff.

The creditor spouse can also file a complaint: the non-payment of alimony constitutes a criminal offence of family abandonment punishable by two years’ imprisonment and a fine of EUR15,000. If the debtor spouse’s bad faith results in harm to the former creditor spouse, the latter can also request the determination of compensatory damages.

Non-Payment of the Compensatory Allowance

In the event of non-payment of the compensatory allowance, it is possible to request the involvement of a bailiff to initiate recovery procedures. The bailiff can carry out one of the following procedures:

• direct payment (except for the compensatory allowance paid as a lump sum);
• bank account seizure;
• wage garnishment;
• attachment of assets; and
• forced sale.

The non-payment of the compensatory allowance also constitutes a criminal offence of family abandonment (see “Non-Payment of Alimony”).

Debates regarding the grounds, consequences of divorce and provisional measures are not public (Article 248 of the Civil Code). Thus, the media cannot attend the proceedings. If the judgment is made available to the public, the parties must be anonymised (Article L 111-13 of the Judicial Organisation Code).

Alternative dispute resolution methods hold an increasingly prominent role in family matters, particularly with the introduction of mutual consent divorce (“divorce par consentement mutuel”) and the advancement of mediation and arbitration. For further developments, see the France Trends & Development chapter in this guide.

Mutual Consent Divorce

In France, spouses can divorce by mutual consent without appearing before a judge (see 1.1 Grounds, Timeline, Service and Process, “Out-of-court divorce”). In this divorce agreement, spouses agree on the principle of divorce and all its consequences, including financial ones (asset division, compensatory allowance, etc).

Mediation

Family mediation can be initiated by the parties and the judge may also compel them to meet with a mediator for an initial information meeting. However, the judge cannot compel the parties to follow a mediation process.

Mediation unfolds in three stages.

• An initial information session during which the family mediator outlines the objectives, content and topics to be addressed during the mediation.
• Successive family mediation sessions spanning a period of three to six months.
• At the end of mediation, if an agreement is reached, it is binding on the parties like any contract. It is possible to have it ratified by a judge to give it enforceability, meaning it will be applied to the parties as any court judgment. If no agreement or a partial agreement is reached, the parties must seek the intervention of a judge to settle the dispute.

Arbitration

Family arbitration is gaining traction in France, notably marked by the establishment of the Arbitration Centre for Family Disputes (CALIF) in 2019. Certain rights, where parties lack full autonomy, cannot be subject to arbitration. Specifically, extrapatrimonial rights – concerning an individual’s status, capacity, and issues related to divorce and legal separation – are excluded from arbitration (Articles 2059 and 2060 of the Civil Procedure Code). Nevertheless, patrimonial matters are arbitrable and encompass various aspects, such as :

• the settlement of matrimonial regimes or joint ownership;
• the resolution of a “société civile immobilière” (SCI) at the time of divorce; and
• the determination of the quantum and modalities of the compensatory allowance, etc.

An arbitration clause is essential to arbitrate family law issues. Arbitration can be implemented from the beginning in marriage, cohabitation or civil union contracts to address potential future disputes. The compromissory clause can outline the procedures for selecting the arbitrator or arbitration centre, specify the location of arbitration, and define the applicable procedures. In the event that parties have not initially included such a clause, they still have the option to convene, once a dispute arises, and voluntarily agree to arbitration by signing an arbitration compromise.

Parental Responsibility: Residence and Visitation Rights

To determine jurisdiction in matters of parental responsibility, French courts apply the provisions of Regulation (EU) No 2019/1111 (“Brussels IIb Regulation (recast)”) for proceedings initiated from 1 August 2022, and Regulation (EC) No 2201/2003 (“Brussels IIb”) for proceedings initiated before.

Article 7 of the Brussels IIb Regulation (recast) states that the court having jurisdiction for issues related to parental responsibility for a child under 18 is the court of the member state of the habitual residence of the child at the time the court is seised.

The Brussels IIb Regulation (recast) introduced the possibility for parents to designate the courts of a member state which shall have jurisdiction over matters relating to parental responsibility (Article 10), provided that the following apply.

• The child has a close connection with that member state, including:
1. at least one holder of parental responsibility has habitual residence there;
2. that member state is the former habitual residence of the child; or
3. the child is a national of that member state.
• The holders of parental responsibility have agreed on the jurisdiction, either at the time the court is seised or have expressly accepted jurisdiction during the proceedings.
• The exercise of jurisdiction is in the best interests of the child.

In the case of a lawful relocation from one member state to another (Article 8), the courts of the former member state retain jurisdiction for three months after the move to modify a visitation rights decision in that member state if the person to whom visitation rights were granted continues to reside in the former member state.

In cases of wrongful removal or non-return of the child (Article 9), the courts of the member state where the child had habitual residence before the removal or non-return retain jurisdiction until the child acquires a new habitual residence in a member state, and certain conditions are met.

If the child’s habitual residence cannot be established, and there is no choice of jurisdiction under Article 10, the jurisdiction of a member state can be based on the child’s presence (Article 11).

Child Maintenance Obligations (Contribution to Maintenance and Education, “contribution à l’entretien et à l’éducation de l’enfant”)

Under Article 3 of Regulation (EC) No 4/2009, the courts having jurisdiction over child support in EU member states are:

• the court of the EU member state where the defendant has their habitual residence;
• the court of the EU member state where the creditor has their habitual residence (it should be noted that the court is generally that of the crediting parent, unless child support is paid directly to the child); or
• the court having jurisdiction to hear an action related to parental responsibility when the claim for child support is incidental to this claim, for example, in the context of divorce proceedings. This extension of jurisdiction does not apply if jurisdiction is based on the nationality of only one of the parties.

The choice of forum is expressly excluded by Article 4 in proceedings concerning a child under 18.

Habitual Residence, Nationality and Domicile

The concept of habitual residence, under European law, differs according to whether the residence in question is that of an adult or a child. In regards to a child’s residence, the Court of Justice of the European Communities has stated that habitual residence should be interpreted as “the place that reflects a certain integration of the child into a social and family environment”. It added that “[f]actors such as the duration, regularity, conditions, and reasons for the stay in a Member State, the child’s nationality, place and conditions of schooling, linguistic knowledge, and family and social relationships in the state must be taken into account”.

The concept of nationality is the same as in divorce proceedings (see 1.2 Choice of Jurisdiction, “Domicile, Residence and Nationality”) and French law does not recognise the concept of domicile.

Issues related to children encompass the following.

• Exercise of parental authority:
1. the exercise of parental authority;
2. the residence of the child; and
3. the visitation and lodging rights of the other parent.
• Contribution to the child’s maintenance and education.

In the event of divorce or legal separation, the arrangements for exercising parental authority over a minor child, as well as the contribution to their maintenance and education, will be determined within the divorce or separation proceedings. Parents can also approach the Family Court judge outside the divorce or separation process.

In cases of urgency, one parent can petition the Family Court judge to be authorised for expedited proceedings to obtain a quicker hearing date. The petitioner must demonstrate the urgency, such as a violation of their parental rights by the other parent, imminent school enrolment, or impending relocation.

Exercise of Parental Authority

By default, both parents share the exercise of parental authority over the minor child (Articles 372 and 373-2 of the Civil Code). However, if justified by the child’s best interest, the Family Court judge may decide that parental authority will be exclusively exercised by one parent (Article 373-2-1 of the Civil Code).

Parental authority ceases when the child reaches the age of majority – 18 years old in France (Article 371-1 of the Civil Code). Therefore, parents can only seise the judge or agree on the terms of its exercise for minor children.

When determining the exercise of parental authority, the Family Court judge must ensure the safeguarding of the child’s interests (Article 373-2-11 of the Civil Code) and consider factors such as the following:

• past parental practices or prior agreements;
• the feelings expressed by the minor child during hearings, if applicable;
• each parent’s ability to fulfil duties and respect the rights of the other;
• results of any relevant expert assessments, considering the child’s age;
• information gathered from social investigations; and
• any physical or psychological pressures or violence exerted by one parent on the other.

To help their decision, the Family Court judge may order a psychological evaluation of the family or a social investigation on the living conditions and accommodation of the child with each parent (Article 373-2-12 of the Civil Code).

Both parties and the judge have flexibility in determining the child’s residence and visitation rights. Residence can be established:

• alternating between the homes of each parent, on a weekly basis or other schedules; or
• solely at one parent’s home, with the other parent having visitation rights, the extent of which depends on factors such as availability, geographic proximity and the children’s ages.

If needed, and when the child’s best interests require it, visitation rights can be exercised in a supervised setting to ensure the child’s safety and allow the parent to be surrounded by professionals.

The exercise of parental authority determined by the Family Court judge is in the absence of a better agreement between the parents. If desired, parents modify the arrangements and can, for example, mutually agree to expand visitation rights or implement shared residence without re-seising the Family Court judge. If an agreement is reached, they can, however, request the judge to approve it for enforceability (Article 373-2-7 of the Civil Code).

Child Support

In France, the contribution to the maintenance and education of a child (“contribution à l’entretien et à l’éducation de l’enfant”) takes the form of a monthly allowance. It can also take the form of covering certain in-kind expenses (eg, school fees, extracurricular activities, unreimbursed health expenses, psychologist fees), or can be a mix of both these forms.

The contribution is calculated based on the resources of each parent and the child’s needs (Article 371-2 of the Civil Code). The residence arrangement can also impact the amount of the contribution for the child. French law does not provide for any specific calculation. The determination of the amount is left to the discretion of the Family Court judge.

The Family Court judge may temporarily grant the use of the family home to the parent with whom the child resides, in exchange for an occupation fee, if applicable, and for a maximum duration of six months unless the property is jointly owned by the parents. In this case, the judge can extend this measure if either party initiates a procedure for property settlement (Article 373-9-1 of the Civil Code).

If parents agree on the amount and terms of this contribution, they can enter into a parental agreement and request its approval by the Family Court judge to make it enforceable (Article 373-2-7 of the Civil Code).

The contribution to the maintenance and education of the child does not cease with the child’s majority (Article 371-2 of the Civil Code). It is customary for it to continue until the child achieves financial independence. When the child reaches adulthood, it is possible to request that the Family Court judge indicates that the contribution will be paid, in whole or in part, directly to the adult child, especially if they no longer reside with either parent (Article 373-2-5 of the Civil Code). An adult child can seise the Family Court judge to request or maintain a contribution for their maintenance and education, demonstrating their need in such cases.

Either parent can approach the Family Court judge in case of disagreement regarding the child’s education, religious upbringing or medical care. The Family Court judge must consider the child’s best interests, the elements listed in Article 373-2-11 of the Civil Code (see 3.2 Living/Contact Arrangements and Child Maintenance, “Exercise of Parental Authority”), and any other information brought to their attention.

There is no legal definition of “parental alienation” in French law. In cases of suspected “parental alienation”, where one parent attempts to estrange the child from the other parent, the Family Court judge can request a psychological evaluation of the family before making any substantive decisions. The judge must then draw all necessary conclusions from the expert’s report to protect the children, potentially establishing residence with the other parent and arranging visitation in a supervised setting initially.

Minor children can be heard in proceedings that concern them, provided they have the capacity for discernment (Article 388-1 of the Civil Code). However, the child is not a party to the proceedings, and therefore cannot submit evidence.

Agreement

The Family Court judge can approve the parties’ agreement regarding both living arrangements and child maintenance during or outside a divorce process (see 3.2 Living/Contact Arrangements and Child Maintenance).

Mediation

The judge must attempt to reconcile the parties in case of disagreements regarding the exercise of parental authority (Article 373-2-10 of the Civil Code). Family mediation can be led regarding children’s issues (see 2.9 Alternative Dispute Resolution (ADR), “Mediation”).

Nevertheless, it has to be noted that if one parent alleges violence against the other or the children, it is impossible for the Family Court judge to compel the parties to meet with a mediator (Article 373-2-10 of the Civil Code).

For recent developments regarding mediation towards children’s issues, reference is made to the France Trends & Development chapter in this guide (see “Dejudicialisation of family procedures”).

Arbitration

Unavailable rights cannot be arbitrated. Thus, extrapatrimonial issues involving the legal state and capacity of a person such as filiation or child custody arrangements are excluded from arbitration (see 2.9 Alternative Dispute Resolution (ADR),“Arbitration”). Nevertheless, financial issues concerning children, such as child maintenance, can be submitted to arbitration.

It is important to note that these principles do not extend to international arbitration. Consequently, non-financial matters can be arbitrated in cases involving “international trade interests” (Article 1504 of the Civil Procedure Code).

In France, civil hearings related to children (parental responsibility, child support) are held in private, without the presence of the public or media. Consequently, the media cannot attend the proceedings. If the judgment is published, the names of the parties and the child(ren) will be anonymised.