Academic journal article Houston Journal of International Law

Compensatory Allowance after Divorce in French Law: La Prestation Compensatoire

Academic journal article Houston Journal of International Law

Compensatory Allowance after Divorce in French Law: La Prestation Compensatoire

Article excerpt

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). …

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