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Separation: aspects of civil law (7/11)

 for the couple?
for minor children?
for the marital home?

(If you have a PACS agreement, the dissolution conditions are explained here)

You are legally married
The couple

You have a common law marriage
The couple

Only a legal separation proceeding or a divorce legally defines the separation of the couple with divorce ending the marriage definitively.
Domestic, physical, sexual, economic or moral violence can constitute "a serious or repeated violation of marriage obligations, rendering continuing to live together intolerable."
The violence can thus justify the request for a divorce for fault. Recourse to an uncontested divorce (consentement mutuel) is poorly adapted to very contentious situations: it eliminates the notion of fault; the agreements established in these conditions often lead to serious disputes that are difficult to resolve.
Starting a legal procedure requires the help of an attorney who files a divorce petition with the family division judge (juge aux affaires familiales).
It is the woman's responsibility to establish the reality and the severity of what she suffered by all means of proof: medical certificates, witness statements (friends, family, work colleagues, neighbors …), letters … will be necessary. The judge assesses each situation using the elements of written proof in his possession. Verbal testimony is not taken into consideration.
The violence can justify the woman's departure from the marital home. Precautions are nevertheless necessary to assure that the situation doesn't turn against the woman. She must prove the violence suffered; it will also be in her interest to notify the police (commissariat) with a declaration on the incident report register (registre de main courante) or at the sheriff's department (gendarmerie) with a simple declaration in a statement (procès-verbal) of her departure from the marital home as well as the circumstances, without mention of her new address.
Finally, even if she isn't considering a definitive separation, it will again be in the woman's interest to request emergency temporary orders (procédure de requête d'urgence) from a family division judge, in order to have legal guaranties in the case of a prolonged absence from the marital home. This will allow her to get temporary authorization for separate residence (this authorization also concerns the minor children). This action is included in the divorce or separation file and requires the help of an attorney.

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You are legally married
Minor children

You have a common law marriage
Minor children

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Until the law dated January 8, 1993, custody was granted to the mother except for a couple's voluntary request for joint custody.
Since this law has been in effect, the principle of joint custody in the case of common law couples has been affirmed with two conditions: 1) recognition by both parents before the age of one year; 2) the reality of living together at the time of joint recognition or of the second recognition.
The law applies to children recognized before January 8, 1993 if the above are met and if the child habitually lived with both parents on this same date. On the other hand, legal decisions made prior to this law remain intact. In all other cases, the mother alone has full and complete custody. In the event of conflict, the family division judge (in family court) can modify the custody conditions concerning a natural child.
The mother can then make an emergency petition (without the help of an attorney) to ask that the minor child live with her (physical custody) or to have sole legal custody.

You are legally married
The marital home

The matrimonial judge can award the home to the wife in a divorce or separation proceeding in the non-conciliation order. Sometimes, the husband is given time to organize his departure.
If it is requested in writing, the judge can order the expulsion of the husband by the police, after the delay allowed. If the expulsion is not mentioned in the petition, a request in chambers can complete a decision. However, in both cases, the matrimonial judge is not the guarantor of the judgement's execution.

The family division judge does not have the power to determine the attribution of the marital home.
The expulsion of the common law husband cannot be requested of the court except if the woman is the sole owner or renter of the shared lodging.
If the couple are co-renters or co-owners of a shared lodging, neither one can be forced to leave the lodging.
If the couple are co-renters and one of the two chooses to leave the lodging, it is in his or her interest to withdraw his or her name from the lease by return registered letter to the owner of the lodging (who is required to record it).

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