Family Law 2024 Comparisons

There are five jurisdictional grounds to commence divorce proceedings in Monaco, which are:

• a fault (ie, a serious or repeated breach of the marital obligations) on the part of one or both of the parties;
• a breakdown of cohabitation for at least three years;
• a criminal conviction that makes it intolerable to maintain the marital relationship;
• an illness of one spouse, the severity and duration of which may dangerously compromise the stability of the family; and
• an agreement of both spouses to get a divorce.

These rules do not apply to civil partners, who are bound by a contract that ends automatically in the event of marriage, at the joint or unilateral initiative of one of the partners. After informing the notary who registered the contract, the end of the contract must be recorded in the register of civil solidarity contracts held at the court clerk's office.

Same-sex marriage is not allowed in the Principality. The matter of transcription into the Monegasque marriage register of a same-sex marriage contracted without fraud abroad is currently pending before the Monaco courts. To date, no court has granted same-sex divorces.

Divorce proceedings in Monaco are always judicial and unfold in at least two subsequent stages (whether the divorce is amicable or contentious) – or three, if there is a dispute regarding the sharing of the assets. However, the timeline will differ depending on how contentious the proceedings are. They can last up to ten years in complex matters. Court proceedings are always necessary to get a divorce, even amicably. The proceedings will, of course, be much shorter if the divorce is amicable – typically about six months, as the parties still need to go through an attempt of reconciliation before the divorce itself and its final consequences, which can include the sharing of marital assets.

At the first stage, the applicant spouse must personally submit a divorce petition before the president of the court of first instance and request the authorisation to summon the other spouse to an “attempt of reconciliation” hearing. The applicant spouse must then serve a convocation to an attempt of reconciliation and, after the attempt of reconciliation, serve summons for divorce on the other party.

Service is made at the defendant’s domicile. If the spouses are still living under the same roof, it is customary for the bailiff to ask the defendant to collect the document at the bailiff’s office. Service then takes place in person. When the defendant spouse is not present at their Monegasque domicile, the bailiff is authorised to serve a copy of the documentation (in an envelope) to:

• members of the defendant’s family who are living with the defendant and over the age of 18; or
• domestic staff or any other employee present at the defendant’s domicile (apart from the concierge of the building).

Of course, this is only possible if they accept service on the defendant’s behalf. If no one accepts service, the bailiff must deposit the document at the City Hall and inform the defendant by registered letter (with acknowledgement of receipt required). By the time the summons for divorce must be served, the defendant spouse has usually retained an attorney and service can then take place at the attorney’s office if the defendant has domiciled themself at their attorney’s.

If the divorce is amicable, the spouses can submit a joint petition through their respective lawyers or their common lawyer. The reconciliating judge meets with each of the parties individually.

In the absence of reconciliation, the judge hears the parties’ lawyers on interim measures and issues a ruling on such measures (applicable for the duration of the divorce proceedings). The judge then authorises the applicant spouse (or both spouses in case of a joint petition) to proceed with the second stage of the proceedings – ie, serving summons for the other spouse to appear before the trial court regarding the divorce itself and its final consequences (including the issue of the compensatory allowance, but not the sharing of marital assets at this stage unless the divorce is amicable).

Further to the final divorce decree, if the parties do not agree on the sharing of marital assets, one of them must file a further application before the court to rule on the points of disagreement between the parties. This is the third stage of the divorce process or, more accurately, the post-divorce stage of the liquidation of the spouses’ matrimonial property regime.

Monegasque law does not recognise the effects of strictly religious marriages and divorces. In Monaco, a civil ceremony before a public officer must take place for the marriage to be valid and a divorce needs to be a (civil) court process.

A judicial separation can be pronounced in the same circumstances and with the same requirements as those applicable for a divorce (Article 206-1 of Monegasque Civil Code). An annulment of a marriage could also be requested, based on a set of grounds provided by the Civil Code, such as the absence of consent. An action for nullity of the marriage may be brought by either spouse, by any interested person or by the public prosecutor within 30 years of its celebration.

Pursuant to the provisions of the Monegasque Code of Private International Law, the Monegasque courts have jurisdiction to rule on divorce and judicial separation:

• when the domicile of the spouses is in the Principality;
• when the last domicile of the spouses was in the Principality and one of the spouses still lives there;
• when the defendant spouse is domiciled in the Principality; or
• if one of the spouses is of Monegasque nationality.

Monegasque courts also have jurisdiction to convert judicial separation into divorce when judicial separation has been pronounced in Monaco.

A spouse, whether plaintiff or defendant, may be tempted to choose a foreign court that will be more favourable to them in terms of financial measures.

If the other spouse has applied to the Monegasque court, the reconciling judge will have to refer the case to the court of first instance, which will rule on the question of jurisdiction in accordance with the provisions of the above-mentioned Code of Private International Law.

Same-Sex Marriage and Civil Partnership

Monegasque law does not allow for the performance of same-sex marriages in Monaco and, as such, the question of the recognition of a same-sex marriage performed abroad is currently pending before Monegasque courts. If Monegasque courts decided to recognise a same-sex marriage performed abroad, then the grounds for divorce detailed in 1.1 Grounds, Timeline, Service and Process would apply to same-sex couples as well.

Monegasque law has recently adopted a form of civil partnership known as “civil solidarity contract”. It may concern same-sex couples but also mere cohabitants (such as family members) and only offers minimum rights. A civil solidarity contract may be terminated in the following circumstances:

• death of one or both partners;
• marriage of one of the partners;
• joint declaration of the partners; or
• unilateral declaration of one partner.

Concepts of Domicile, Residence and Nationality

In order to determine jurisdiction in divorce matters, as mentioned previously, Monegasque international private law relies on the concepts of:

• domicile (ie, Monaco courts have jurisdiction if the common domicile of the spouses is in Monaco, if the last common domicile where one of the spouses still resides is in Monaco, or if the defendant spouse has his domicile in Monaco; and
• nationality (Monaco courts have jurisdiction if one party has the Monegasque nationality).

A party’s domicile is located at the person’s principal place of settlement, which requires a material element (physical presence) and an intentional element (the intent to primarily settle there). A person may only have one domicile. Monegasque citizens and Monegasque residents are presumed to be domiciled in Monaco, unless proven otherwise. The nationality of a person is determined by the law of the state of which the citizenship is in question. A person may have several nationalities, which may each be relevant for the purpose of establishing jurisdiction.

Contesting Jurisdiction

A party to divorce proceedings is allowed to contest jurisdiction. They must do so right away, in limine litis – ie, before any defence on the merits – and the court itself will declare of its own motion that it lacks jurisdiction if none of the above-mentioned criteria is met. Given that the reconciling judge does not have the power to rule on jurisdiction, the jurisdiction challenge is heard by the court of first instance in collegial formation.

In case of parallel proceedings in two different countries, the Monegasque court would rule on the divorce if it was the court seized first – provided it has jurisdiction. If the Monegasque court was seized, it may stay the proceedings until the foreign court rules on its own jurisdiction. In that case, if the foreign court finds that it has jurisdiction, the Monegasque court shall decline jurisdiction – provided the foreign decision can be recognised in Monaco (in accordance with the Principality’s rules for recognition).

Monegasque courts have jurisdiction to hear any claim concerning a maintenance obligation when the maintenance creditor or debtor is domiciled in the Principality or is a Monegasque citizen. If the claim is ancillary to divorce proceedings (as is often the case), then the Monegasque court with jurisdiction to hear the divorce also has jurisdiction over the ancillary maintenance or compensation claims (within the same set of proceedings). If the financial claim is part of the divorce, the same rules than those applicable to divorce apply.

If the claim is filed after the divorce has already been judged, under Monegasque law, a party to financial proceedings can challenge jurisdiction in limine litis before the court of first instance. The jurisdiction challenge will be ruled upon before any proceedings on the merits, except where there is an urgent need to decide on interim measures. In the event of parallel financial proceedings in two different countries, the same rules and process outlined in 1.2 Choice of Jurisdiction for divorce apply.

Monegasque courts can hear financial claims after a foreign divorce regarding:

• child support (if a new element justifies that it be varied); or
• the sharing of marital assets (if it has not been done by the foreign court – for example, where Monaco-based assets are concerned).

Under Monegasque law, compensatory allowance claims (see 2.3 Division of Assets) cannot be made post-divorce. Although there is no case law admitting it to the best of the authors’ knowledge, such claims could theoretically be made post-divorce before a Monegasque court under a foreign applicable law if it is possible under that law and the defendant has relocated to Monaco since the divorce. However, in order to make such a claim post-divorce under the applicable foreign law, the applicant would need to meet a very high standard of proof. The applicant would also face a procedural obstacle, as in Monaco compensatory allowance claims can only be made within the framework of divorce proceedings.

Normally, financial claims are part of the divorce proceedings. Therefore, the service requirements are the same as those applicable in divorce proceedings (see 1.1 Grounds, Timeline, Service and Process).

Within a divorce, there are two stages regarding financial claims:

• interim measures, which can be requested at the beginning of the proceedings before the reconciliating judge – namely, spousal maintenance and child support) – and apply throughout the divorce proceedings; and
• compensatory allowance claims and final child support, which can be made at the second stage of the divorce proceedings before the trial court (ie, when the procedure on the merits is initiated).

Financial disputes are rarely amicable and their length depends on the resistance of the defendant. The proceedings can then take several months. If the defendant refuses to disclose the amount of their income, the judge may order a financial report, which will extend the proceedings for several more months.

Under Monegasque procedural rules, the court does not divide the assets of the spouses at the same time as it rules on the divorce and the consequences of the divorce. Instead, the court orders the liquidation and sharing of the matrimonial property regime (ie, property interests that may have existed between the spouses) and appoints a notary to carry this out. If the parties do not reach an agreement before the notary, one of them must file a further set of proceedings before the court. The approach of the notary and the court will depend on the matrimonial property regime adopted by the spouses. However, while ruling on the divorce, the court may grant one or both spouses an advance on their share of the common or undivided property.

There are no reallocation of assets claims as such upon divorce under Monegasque law.

The parties’ assets are identified by the court through the evidence presented to them by the parties – in particular, bank statements, balance sheets, deeds of acquisition of property, or deeds of gift. There is no broad disclosure process in Monaco and orders to disclose one or several specific pieces of evidence are also quite rare.

Matrimonial property regimes do exist in Monegasque law. In Monaco, the legal matrimonial property regime is that of the separation of assets. However, the spouses or future spouses can also opt for a community of property regime. The liquidation of the matrimonial regime will obey the specific rules for liquidation of each regime and will be carried out by a court-appointed Monegasque notary and, in case of difficulty, by the court.

Although Monaco has a civil law system (inspired by the French legal system), it expressly recognises and respects the Anglo-Saxon legal concept of the trust. Unlike France, Monaco is a party to The Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition. Not only does Monaco recognise foreign trusts validly created abroad, its legislation allows for the constitution of trusts in Monaco when the law of the nationality of the settlor enables them to set up such a trust. If assets have been transferred to an irrevocable trust, they cannot be claimed for sharing as part of the liquidation of the matrimonial property regime following the divorce (with the possible exception of a sham trust).

The assets of the trust and the income they generate will be taken into account in calculating the compensatory allowance, depending on whether they belong to or benefit the spouses.

During divorce proceedings, as part of interim measures, spousal maintenance must not only cover the basic needs of the claimant spouse. It must also enable him/her, as far as possible, to maintain the lifestyle he/she enjoyed during the marriage for the duration of the divorce proceedings. As previously described, when setting the amount of spousal support, the court must take into account the needs of the creditor and the debtor’s ability to pay (as well as the couple’s lifestyle). Interim measures can be requested before the reconciling judge and will apply pending the final outcome of the divorce proceedings.

Spousal maintenance stops when divorce is granted. When a divorce is granted, a compensatory allowance may be awarded, which is a financial claim that generally takes the form of a lump sum capital and aims to compensate – up to a certain extent – the financial discrepancy in the spouses’ financial situations resulting from the divorce. Besides, property claims may arise in the context of the sharing of marital assets – along with monetary claims for financing joint assets or the other spouse’s own assets. The court has little discretion regarding the latter, as these claims follow mathematic and binding rules governing the matrimonial property regime – although their calculation can prove very complex and the standard of proof difficult to meet. As regards whether or not to allocate a compensatory allowance (and the amount thereof), the court has significant discretion.

The right to a compensatory allowance depends, in a fault-based divorce, on who is at fault. If the divorce is judged solely against the financially weaker party, the latter will not receive any compensatory allowance.

Marital contracts are fully recognised and binding in Monaco. They relate to the spouses’ matrimonial property regime and are entered into before a Monegasque notary ahead of the marriage (or within the course of the marriage through a change of matrimonial property regime, subject to the court’s approval, following consideration of the family’s interests).

Foreign pre- or postnuptial agreements may also be recognised in Monaco and enforced by Monegasque courts, as long as they are governed by a law that the parties could choose under Monegasque private international law rules. Provisions regarding maintenance and compensation upon divorce are not valid under Monegasque law. However, they may be recognised in Monaco if they were validly made under a foreign law, as long as:

• such law could be validly chosen by the parties under Monegasque rules of private international law; and
• such provisions are not in breach of Monegasque public policy.

If two persons are merely cohabitating, without entering into any civil solidarity contract, such cohabitation has no impact on their assets and does not create any rights or obligations.

If they signed a civil solidarity contract, each of the partners or cohabitants retains the administration, enjoyment and free disposal of their personal property – whether acquired before or during the contract (civil partnership).

Under a civil solidarity contract, the only financial obligation of partners and cohabitants is to contribute to the household expenses. This obligation ceases if the civil solidarity contract is terminated, which can be done at once and unilaterally. No financial compensation is provided for upon breakdown of the civil solidarity contract.

Partners and cohabitants do not benefit from the same rights and duties as spouses. The effects of foreign civil partnerships in Monaco cannot exceed those provided for by Monegasque law under the civil solidarity contract.

If a maintenance debtor fails to comply with financial measures ordered by court for the benefit of a spouse or a child, this constitutes a criminal offence known as “family abandonment”. The debtor may be prosecuted before the criminal court and sentenced. From a civil perspective, steps can be taken to enforce the order against the debtor’s assets.

For a foreign order to be enforced in Monaco, it must meet the following criteria:

• it must have been issued by a court that had jurisdiction;
• the rights of defence must have been respected;
• it must be compliant with Monegasque public policy; and
• it must not be contrary to another judgment previously rendered in the Principality or in another state.

Judicial enforcement of a foreign order may be granted after an adversarial court procedure.

All cases concerning the status of persons – and therefore those that fall under family law – are tried in a closed session. The press is not allowed in the courtroom. Additionally, if one party to divorce proceedings makes the debates public, that party can be sentenced to a fine.

All decisions published by the Monegasque courts in respect of family matters are anonymised.

ADR methods in family disputes are non-existent in Monaco, including those related to the financial consequences of divorces. Mediation is the exception, although it is in no way binding. Mediation is rarely resorted to, however, and is often limited to child-related disputes.

Whether it concerns child-related matters or the consequences of a divorce, an agreement reached via a non-court process will need to be ratified by the court in order to be binding and enforceable in Monaco.

The Monegasque Code of Private International Law expressly reserves the application of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Reference should then be made to Article 5, according to which the authorities with jurisdiction are those of the child’s habitual residence.

Monegasque case law defines the child’s habitual residence as “the place that reflects a certain integration of the child in a social and family environment”. The elements to be taken into account, in particular, are:

• the duration, regularity, conditions and reasons for the stay;
• the child’s nationality;
• the place and conditions of schooling;
• the child’s language skills; and
• family and social relationships.

It is the guardianship judge (juge tutélaire) who has jurisdiction to rule on any difficulties that may arise in family relationships. As such, the guardianship judge may order the necessary measures for the children’s protection. In these matters, the guardianship judge may intervene on their own initiative. The guardianship judge also has sole jurisdiction to change the usual residence of a minor whose parents are legally separated or divorced.

Child Arrangements

When parents separate, they can apply to a judge to organise the conditions under which they will exercise their parental authority over the children. In the event of a divorce, the judge will have to rule on this issue.

If the parents are not married, or if they are divorced and the situation has changed since the divorce, they may apply to the guardianship judge for this purpose. When they reach an agreement, they can ask the judge to homologate it, which makes it enforceable.

The judge’s decision is based on the child’s best interests. This means that, unless there is a danger, the child’s relationship with both parents will be fostered.

The court fixes the child’s habitual residence with one or the other parent, or alternately with each parent, as long as the child is over three years old. The parent with whom the child does not live on a regular basis is granted visiting and accommodation rights, unless there are serious reasons for not doing so.

Alimony is set according to the resources of the parent with whom the child does not live and the child’s needs. In the case of shared custody, child support may be payable where there is a disparity in the parents’ incomes, to ensure that the child’s lifestyle does not differ too greatly between the two parents. The setting of child support is a matter for the judge to decide, although they may be assisted by a scale that takes into account the amount of the debtor’s income, the number of supported children, and the custody arrangement (conventional, restricted, extended or shared).

Such a ruling is not limited in time. However, if new facts arise, it is possible to apply to the judge again to obtain a new ruling, which will cancel out the previous one.

A child is considered dependent until the age of majority (18 years old) and beyond if they are studying. Once they have reached the age of majority, children can apply to the court themselves to obtain maintenance. If they are already receiving maintenance, they can ask the judge to receive it directly from the parent who owes it.

Child Maintenance

As previously mentioned, under Monegasque law, each parent contributes to the maintenance and education of the child in proportion to their resources, those of the other parent, and the child’s needs. This obligation may continue beyond the child’s majority – namely, throughout the child’s studies – until the child is financially independent. The judge will take into account the financial situation of each parent and the needs of the child to calculate the amount of child maintenance.

In order for an agreement regarding child maintenance to be binding and enforceable, the parties must have it ratified by the court. The court can make orders in relation to child maintenance, which will apply as long as one of the parties does not contest the order on the ground of a new element.

While the child is a minor, support is paid to the parent who is the primary caregiver. When the child reaches the age of majority (18 years old), any support claim must be made by the child directly.

When parents disagree on how to raise a child – particularly in terms of educational, religious or medical choices – the judge seized by the most diligent parent rules on the dispute and authorises or prohibits the measures requested.

Monegasque law does not contain specific provisions about parental alienation. However, the court’s rulings are made in the “best interests of the child” and the court has various means to ensure that this is preserved. It can order a social investigation, a psychiatric and/or psychological examination of the parents as well as the child, and a hearing of the child if the child is old enough. If it appears that the child is in danger, the court may decide to order an educational assistance measure – or even withdraw custody from the parent who has alienated the child.

Under Monegasque Law, where the interest of the child so requires, the court may hear the child by having the child’s own views taken by a person designated by the judge. The hearing of the child must take place if the child requests it and if the child’s capacity for discernment allows it. The child may be heard alone, with a lawyer, or with a person of their own choosing. The judge shall take these elements into consideration if they consider them relevant and in the best interests of the child. The hearing of the child does not give the child the status of a party to the proceedings. In cases of divorce, all testimonies (even indirect) given by descendants are excluded – irrespective of whether they are children from the marriage in question or from a first marriage.

See 2.9 Alternative Dispute Resolution (ADR).

Child cases are heard in closed sessions, meaning the general public and press are not allowed in the courtroom, for the same reasons outlined in 2.8 Media Access and Transparency. The child’s name appears in the judgment. However, when the judgment is published, the names of all parties to the trial are anonymised – not just the child’s.