Compensatory allowance before any proceedings
Spouses may not agree on the principle and terms of a settlement
After the legal separation of spouses X. - Y., a deed of partition of the community that had existed between them was drawn up by notarial deed dated 11 April 1988. This deed provided that Mrs Y. owed a balancing payment of 155,559.29 francs, while Mr X. himself acknowledged that he owed her the same sum by way of compensation. compensatory allowancethe set-off of claims being stipulated.
A final judgment of 26 March 1998 granted the divorce and ordered Mr X. to pay his former wife a compensatory allowance in the form of a life annuity. Believing that he had thus paid his ex-wife a double compensatory allowance, he summoned Mrs Y. for restitution of the sum of 155,559.29 francs. The Court of Appeal upheld his claim, holding that the settlement on compensatory allowance entered into with Mrs Y. in 1988 was absolutely null and void.
Solution adopted by the Court of Cassation (Compensatory allowance before any proceedings) :
Mrs Y. then appealed to the French Supreme Court, arguing that the nullity of the transaction was only relative, which meant that the five-year limitation period set out in article 1304 of the Civil Code applied. However, the High Court dismissed the appeal:
"... whereas no divorce proceedings ... the Court of Appeal correctly decided that the clause on this benefit in the notarial deed was automatically null and void"..
Compensatory allowance before any proceedings
What you also need to know:
It is up to your lawyer to take the necessary steps to refer the matter to the family court.
The case must be brought before the court by a assignment (A document issued by a court commissioner (formerly a bailiff's document) informing a person that a lawsuit has been brought against them and summoning them to appear before a court. divorce).
When you and your spouse agree to go to court together for your divorce, you can use a request (Formal written application to the courts joint).
Divorce proceedings
If you are the requesting spouseIf you wish to obtain a divorce, your lawyer must draw up the writ of summons in consultation with you.
This summons is then sent by a court commissioner (formerly a bailiff) to your spouse.
The case is referred to the family court as soon as the summons is filed with the court by your lawyer.
If you are the recipient of the writ of divorce, you are the defendant spouse. In this case, you must choose a lawyer within 15 days.
The summons constitutes the conclusions (Written document setting out the claims of each party to the proceedings. This document must be drafted by one of the parties or by a lawyer.) of the claimant spouse, i.e. his or her claims and arguments.
It must indicate the type of divorce sought:
- Divorce on grounds of permanent impairment of the marriage bond
- Divorce for acceptance of the principle of marriage breakdown
If you would like to request a divorce for faultYou do not need to indicate this in the summons.
The summons can contain your requests to interim measures. CIn other words, what you want as a temporary arrangement for your property and your children during the divorce proceedings.
Provisional measures may concern both spouses:
- Allocation of family accommodation and household furniture
- Return of clothing and personal belongings
- Determination of a maintenance allowance pursuant to the duty of care (Obligation between spouses, generally taking the form of financial assistance paid by one spouse to the other in need.)
- Organisation of the assumption of responsibility by spouses for their debts and the management of their property
- Appointment of an expert for the liquidation (All operations prior to the transfer and division of assets (payment of debts, recovery of receivables, etc.). their assets and finances
Provisional measures may concern children:
- Exercise of parental authority
- Fixing the residenceand visiting and accommodation rights
- Contribution to their maintenance and education
Your summons must include the following compulsory information:
- Day, time and place of the orientation hearing
- Proposed division of the spouses' assets and finances
- Reminder of the provisions concerning family mediation and the participatory procedure
- Certification (Approval of a deed or agreement by the judge agreements on the exercise of parental authority and the consequences of divorce).
https://www.christian-finalteri-avocat.fr/cabinet-avocat-competences/droit-famille/
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