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
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
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.