Divorce / Separation / Child / Alimony
When divorce or separated arises in particular the question :
- the award of the home ;
- habitual residence of the child ;
- contribution to the maintenance and education of children ;
- alimony ;
- the allocation of debts between spouses , partners , PACS partners.
Master Denis BRACKA you provide answers and help you to better enforce your rights and those of your children.
There are 4 divorce proceedings :
- Divorce by mutual consent
- Accepted divorce
- The fault divorce
- Divorce for irretrievable breakdown
I. Divorce by mutual consent
The choice of this form of divorce means that both spouses have agreed on two points:
– Must firstly that each spouse wants to divorce
– Then they must agree on measures that address the consequences of their separation (allocation of the marital home , actions concerning children : habitual residence , contribution to the maintenance and education , distribution of debts .. . )
Because of the simplifications introduced by the reform came into force on 1 January 2005, this mode of divorce is simple and fast.
II. Accepted divorce
The divorce may be requested by one or both spouses , or both , when they accept the principle of marriage breakdown regardless of the facts behind it.
This procedure differs from divorce by mutual consent that the spouses agree on the principle of separation but not its consequences.
It is the judge who will decide both the financial consequences of divorce ( compensatory allowance … ) on the plight of children .
This procedure can be introduced by both or one of the spouses.
If it was made by one of the spouses, the acceptance of the other must be present during the procedure.
Once the acceptance given , it becomes irrevocable , even by way of appeal .
In the absence of acceptance of one spouse , the other should consider a procedure for fault divorce or a divorce for irretrievable breakdown of the marriage bond in the presence of a separation of more than two years.
III. The fault divorce
It may be requested by either spouse when the spouse was the author of ” facts constituting a serious or repeated violation of duties or obligations of marriage, and making intolerable the continued cohabitation .”
To divorce the exclusive fault of a spouse , the judge will then determine whether the facts alleged are sufficient severity , or if they have been committed repeatedly . The judge will consider the lifestyle of the couple.
Examples of misconduct :
- adultery, illegitimate birth of a child
- abuse against the spouse or children
- breach of duties relating to the maintenance and education of children
- repeated insults , death threats
- refusal financial contribution to household expenses
- the depletion of household savings
In cases of domestic violence , emergency measures can be taken (before the divorce ) by the family court judge to ensure the safety of the abused spouse .
In such a case , it is important to gather some evidence before referral to the courts . The filing of a complaint to the police , and the recognition of violence by a doctor are prerequisites . Hold a certificate of Emergency Medicine Notice ( Public hospitals ) will have a greater probative value to
“Simple” medical certificate from the family doctor.
Some details about adultery
Adultery spouse does not automatically the divorce solely to blame . The judge has a sovereign power to assess the gravity of the facts. It will take into account the attitude of each spouse and their conception of fidelity.
Thus, adultery after separation of fact should not be allowed to obtain the issuance of a fault divorce . Similarly, if each spouse maintains an extra marital relationship , there can be no divorce solely to blame one of them.
In principle, as long as the divorce is pronounced , the obligation of fidelity between spouses remains . However , many courts believe that adultery ban between conciliation and the divorce is not at fault , because at that time , the obligation of fidelity is less restrictive.
IV. Divorce for irretrievable breakdown
It will allow a spouse to file for divorce even though her ??husband does not want a divorce. Just that cohabitation has ceased for at least two years at the time of the divorce summons .
It may also be delivered when requested fault divorce was rejected and the spouse against whom the application was made , filed a counterclaim for divorce alteration link of the marital relationship . In this case the condition relating to the cessation of cohabitation for at least two years of not playing.
Separation: end of cohabitation
Unlike marriage , separation from a common-law couple (Article 515-8 of the Civil Code ) , does not induce duties between ex-partners .
It can , however, affect the care of the common children or sharing of any undivided heritage .
Impact on Children : The rules are identical to those for divorced couples.
Impact on the heritage : we must determine the respective shares in each of the common heritage and thus out of a possible ownership.
Separation: breaking PACS
The Civil Solidarity Pact ( PACS ) is a contract. It is concluded between two adults of opposite sex or the same sex , to organize their lives.
Partners bound by a PACS are committed to a common life, as well as material support and mutual assistance.
PACS is dissolved :
- by the death of a partner,
- by marriage partners or one of them,
- Joint Declaration by partners or unilateral decision of one of them.
NB : One partner may seek to PACS.
It will then be necessary to determine the fate of the rights and obligations of ex- PACS.
In general , it is done amicably between the former partners.
In case of disagreement , partners can apply to the court of first instance (the family court judge) to decide on: the financial consequences of the rupture and possibly compensation for damages that may result.
If you are affected by any of these legal actions, contact Master Bracka, a specialist in divorce, separation, child, alimony.