Institute of Global Law

On 29 October, a decree stipulating measures for the enforcement of the 26 May 2004 Act on Divorce was adopted. This decree reforms procedural provisions relating to divorce and marital separation of the Code of Civil Procedure, as well as provisions relating to proceedings before the family law judge. The decree gives the judge an important role in counselling and provides that compensatory property settlements may be temporarily enforced before the final decision. Furthermore, this decree provides that unlawful international displacement of children falls within the jurisdiction of the family law judge (see legislation May 2004).

On 27 May 2004, the new 26 May 2004 Act on Divorce was published in the Journal officiel and will come into force on 1 January 2005. Two existing types of divorce remain – albeit with simplified procedures: divorce by mutual consent and divorce for fault. On the other hand, the present divorce for the “breaking up of married life” (open to couples after six years of de facto separation) is abolished and replaced by the new “divorce for irreversible deterioration of married life” (open after only two years of de facto separation). The divorce for fault will still cover cases of serious or repeated violation of conjugal duties that render married life unbearable and will not be restricted, as initially suggested, to cases of physical violence.

On 19 May 2004, the Conseil d’Etat gave new indication as to the interpretation of article 61 of the French Civil Code relating to surnames. According to the Conseil d’Etat, any family member can request to change his surname to a family name that faces the risk of disappearing. Consent of other family members is not required. The rank in the family genealogy (i.e. the degree of proximity to the person whose name is being requested) may be taken into account in case of competing requests from several family members. The Conseil d’Etat also specified that the request should in principle cover the whole of the surname concerned.

On 3 February 2004, the First Civil Section of the Cour de cassation quashed the decision of a Court of Appeal because it had failed to apply article 147 of the French Civil Code (the prohibition of polygamy) to a situation in which two weddings were celebrated twice by the same spouses, first in Zaire in 1987 and then in France in 1992. The phrasing of article 147 allows such an application, although no polygamy was involved in this case. The resulting nullification of the second wedding prevents any difficulty in interpreting legislation applicable to the spouses’ marital statu

On 6 January 2004, the First Civil Section of the Cour de cassation quashed the decision of the court of appeal allowing the adoption of a child by his mother’s brother. The Cour de cassation grounded its ruling on Article 334-10 of the French Civil Code, which prohibits the establishment of a second filial bond for children born through an incestuous relationship between close relatives. Departing from the court of appeal’s reasoning, the Cour de cassation refused to draw a distinction between legal filial bonds based on biological links and others. According to the Cour de cassation, the prohibition stated in Article 334-10 thus extends to all filial bonds, including adoption.

On 8 January 2004, the text reforming Divorce Law (see October news) was adopted by the Upper House of the French Parliament.

The French Parliament is planning to amend the French Divorce 1975 Act in order to introduce a new ground for divorce – “divorce for irreversible deterioration of married life” – which would replace the present “divorce for the breaking up of married life” (open to couples only after six years of de facto separation). The present divorce for fault – now applicable in cases of any serious or repeated violation of conjugal duties that renders married life unbearable – would be restricted to cases of physical violence. Finally, the third cause for divorce, “divorce by mutual consent”, would remain with simplified procedural requirements. The aim of the reform is to pacify divorce litigation. To avoid tensions, the spouses’ grounds for divorcing would thus not be investigated into or even expressed in the application. Attempts at reconciliation would be given priority over litigation and ongoing proceedings avoided due to a quicker settlement of the matrimonial estate. There is, however, concern that the reform might a) sacrifice the deserted spouse’s interests in order to satisfy the other’s wish to free himself/herself from the neglected matrimonial bond; and b) dilute the special status of marriage as an institution and bring it closer to partnerships (pacte civil de solidarité or union libre) where individual freedom prevails over judges’ decisions. Indeed, under the reform judges would not be able to oppose to the dissolution of the marriage if one of the spouses persists in his/her wish to have a divorce.