COMPENSATORY ALLOWANCE AFTER DIVORCE IN FRENCH LAW: LA PRESTATION COMPENSATOIRE.

Author:Bidaud-Garon, Christine
 
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  1. NATURE, EVOLUTION AND FORM OF THE COMPENSATORY ALLOWANCE 2. DETERMINATION OF THE AMOUNT OF THE COMPENSATORY ALLOWANCE 3. EXECUTION OF THE COMPENSATORY ALLOWANCE 3.1. Compensatory allowance in the form of capital 3.2. Compensatory allowance in the form of a life annuity 3.3. Compensatory allowance in the form of a temporary annuity 4. REVIEW OF THE COMPENSATORY ALLOWANCE 5. CONCLUSION 6. BIBLIOGRAPHY In French law, the question of compensatory allowance is governed by articles 270 et seq. of the Civil Code. An English version of these articles can be found at: https://www.legifrance.gouv.fr/Traductions/en-English/ Legifrance-translations.

    Before describing the French law of compensatory allowance, it must be explained that there are four cases of divorce under domestic law:

    Divorce by mutual consent (art. 230 and seq. of Civil Code): The spouses agree on the principle of divorce and on all the consequences of divorce (patrimonial and extra-patrimonial). (1) It is a fully consensual divorce that can be decided by a court decision, but which, since 2017 (2), a notary can also register.

    Divorce by acceptance of the principle of marriage breakdown (art. 233 and seq. of Civil Code): The spouses agree on the principle of divorce but not on the consequences or not on all the consequences. (3) The judge will rule on the remaining disagreements between the spouses. (4)

    Divorce for definitive alteration of the conjugal bond (art. 237 and seq. of Civil Code): This divorce can be obtained by one spouse, regardless of the wishes of the other spouse, from the moment that they have been separated and living apart for a two-year period demonstrating the termination of the community of life between the spouses. (5)

    Divorce for fault (art. 242 and seq. of Civil Code): One spouse can obtain this divorce in the event of the other's fault. The fault of a spouse is a serious or renewed violation of the duties and obligations of marriage rendering maintaining the community life unbearable (art. 242 of the Civil Code). If both spouses have committed faults, the divorce may be pronounced for shared wrongs. (6)

    L. NATURE, EVOLUTION AND FORM OF THE COMPENSATORY ALLOWANCE

    Article 270 of the Civil Code provides that:

    Divorce puts an end to the duty of support between spouses. One of the spouses may be compelled to pay the other an allowance intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective ways of living. This allowance shall be in the nature of a lump sum. It shall take the form of a capital the amount of which must be fixed by the judge. However, the judge may refuse to grant such an allowance where equity so demands, either taking into account the criteria set out in Article 271, or when the divorce is declared on account of the blame lying wholly upon the spouse who requests the advantage of this allowance, considering the particular circumstances of the breakdown. (7) The objective of the compensatory allowance is to compensate for the disparity in living standards between the spouses that will occur because of the divorce; It's an indemnity, not alimony. It is essential to understand that divorce puts an end to the duty of support between the spouses. Therefore, from the day the divorce is granted it is impossible to have alimony between the spouses. It is only possible to have a compensatory allowance. Before the law of 11 July 1975, only divorce for fault existed and the innocent spouse had a right to alimony. (8) In a way, it took over from the duty of support. It was almost always the woman who obtained it (9), because at that time the majority of women were not working and were housewives. This maintenance was compensatory in its basis (liability for fault) and alimony in its purpose (ensuring the creditor's standard of living). (10) It was calculated according to the resources of the debtor and the needs of the creditor. (11)

    The compensatory allowance was created to replace alimony by the law of 11 July 1975. (12) In this reform, the legislator had focused on concentrating the payment of financial compensation at the time of the divorce. (13) The idea was that the divorce should put a definitive end to the mutual obligations of the former spouses. (14) No duty should continue to exist between the ex-spouses, and this was the case when there was alimony between the ex-spouses. The compensatory allowance was then a fixed allowance and was non-reviewable. (15)

    However, alimony continued to exist in a particular divorce case called a divorce for marital breakdown. (16) In this case, one spouse could impose divorce on the other when the spouses had been separated for at least seven years. (17) The cause of this separation did not matter (choice of spouses, illness of one of them..,). (18) Given the particularity of this situation, the legislator had allowed that an alimony obligation between the spouses would survive the divorce. (19)

    In other divorce cases, the legislator's idea in 1975 was to reduce the disparity in living standards that divorce could cause between the spouses while ending the alimony obligation between them. (20) The objective was to maintain the ex-spouses in the material conditions they had before the divorce or at least to limit the dramatic drop in living standards that the divorce could cause, particularly for the woman at that time. (21)

    Regarding the form of the compensatory allowance, the 1975 legislature introduced a principle of lump-sum capital payment. (22) Payment in the form of an annuity was the exception. (23) This revision was met with some judicial resistance; The weight of past practices and judgment habits meant that judges frequently granted lifetime pensions. This in turn created very delicate situations, because the compensatory allowances were not subject to review, even if they were paid in the form of an annuity. (24)

    The development of women's work, as well as changes in social behavior and mentality, modified the nature of the problem. There was therefore a great need for reform, and the law of 30 June 2000 (25) was passed with 4 objectives in mind: Reaffirm the lump-sum capital nature of the compensatory allowance (by limiting the use of the annuity to very exceptional cases); Confirm and make more flexible the terms of payment in the form of capital; Make the conditions for annuity revisions more flexible Reform the tax system of the compensatory allowance.

    At the time of the reform of divorce law by the law of 26 May 2004, (26) the legislator also made some changes in the system of compensatory allowance; In particular, the possibility of obtaining a compensatory allowance was extended to all divorce cases (to reduce the "drama" of the procedure) and the link between the cause and the consequences of the divorce disappeared. There is no longer any divorce case in which it is possible to have alimony between the ex-spouses. (27) The only possibility is to have a compensatory allowance. (28)

    Since the 2004 reform, the compensatory allowance can be granted in all divorce cases. (29) The duty of support, which is the basis for the alimony obligation between the spouses, ends with divorce in all cases. (30) It should also be specified that the claim for compensatory benefits could only be made during the divorce proceedings. It cannot be applied for after the divorce has been granted, i.e. it cannot be the subject of a subsequent legal claim. (31) Before 2004, the spouse, whose exclusive wrongs were the reason the divorce was pronounced, was not entitled to a compensatory allowance, unless equity required the judge to award a compensatory allowance. (32) Since 2004, the opposite solution has been adopted: the spouse who is exclusively responsible for the divorce may receive a compensatory allowance, unless equity requires that it be refused, in view of the particular circumstances of the divorce. (33)

    In the particular case of divorce by mutual consent, the spouses themselves settle the consequences of the divorce by an agreement, which will either be approved by a judge or registered by a notary. (34) In...

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