Law Of May 26, 2004 Relating To Divorce
LAW No. 2004-439 of May 26, 2004 relating to divorce (1)
NOR: JUSX0300062L
The National Assembly and the Senate have adopted,
The President of the Republic promulgates the law whose content follows:
TITLE I
PROVISIONS AMENDING THE CIVIL CODE
Article 1
Article 229 of the Civil Code reads as follows:
“Art. 229. – Divorce can be pronounced in the following cases:
“- either by mutual consent;
“- either acceptance of the principle of marriage breakdown;
“- either definitive deterioration of the marital bond;
“- either of fault. ”
Chapter I
Divorce cases
Article 2
I. – In section 1 of chapter I of title VI of book I of the civil code, the divisions: “Paragraph 1” and “Paragraph 2” and their titles are deleted.
II. – This section includes two articles 230 and 232 worded as follows:
“Art. 230. – Divorce can be requested jointly by the spouses when they agree on the breakdown of the marriage and its effects by submitting for the approval of the judge an agreement regulating the consequences of the divorce.
“Art. 232. – The judge approves the agreement and pronounces the divorce if he has acquired the conviction that the will of each of the spouses is real and that their consent is free and enlightened.
“He can refuse the homologation and not pronounce the divorce if he finds that the agreement insufficiently protects the interests of the children or of one of the spouses. ”
Article 3
I. – The title of section 2 of chapter I of title VI of book I of the civil code is worded as follows: “Du divorce accepted”.
II. – This section includes two articles 233 and 234 worded as follows:
“Art. 233. – Divorce can be requested by one or the other of the spouses or by both when they accept the principle of the breakdown of the marriage without consideration of the facts at the origin of this one.
“This acceptance is not subject to withdrawal, even by way of appeal.
“Art. 234. – If he has acquired the conviction that each of the spouses has freely given his consent, the judge pronounces the divorce and rules on its consequences. ”
Article 4
I. – Before article 237 of the civil code, a section 3 is inserted entitled: “Divorce for definitive alteration of the marital bond”.
II. – This section includes two articles 237 and 238 worded as follows:
“Art. 237. – Divorce can be requested by one of the spouses when the marital bond is definitively altered.
“Art. 238. – The definitive alteration of the conjugal bond results from the cessation of the community of life between the spouses, when they have been living apart for two years at the time of the summons for divorce.
“Notwithstanding these provisions, the divorce is pronounced for definitive alteration of the marital bond in the case provided for in the second paragraph of article 246, since the request presented on this basis is made as a counterclaim. ”
Article 5
I. – After article 238 of the civil code, a section 4 is inserted entitled: “Divorce for fault”, which includes articles 242, 244, 245, 245-1, as it results from article 6, and 246.
II. – Article 242 of the same code reads as follows:
“Art. 242. – Divorce can be requested by one of the spouses when the facts constituting a serious or renewed violation of the duties and obligations of marriage are attributable to his spouse and make the maintenance of common life intolerable. ”
III. – Article 246 of the same code reads as follows:
“Art. 246. – If a request for definitive alteration of the marital bond and a request for fault are presented concurrently, the judge first examines the application for fault.
“If he rejects it, the judge decides on the divorce petition for permanent alteration of the marital bond. ”
Article 6
Articles 247, 248-1, 251, 252, 252-1, 252-2, 252-3, the second paragraph of article 271, articles 275-1, 276-2, 280 and 1450 of the civil code become Articles 228, 245-1, 252, 252-1, 252-2, 252-3, 252-4, 272, 275, 280-2, 281 and 265-2 respectively.
Article 7
I. – After article 246 of the civil code, a section 5 is inserted entitled: “Changes to the basis of a divorce petition”.
II. – This section includes three articles 247, 247-1 and 247-2 worded as follows:
“Art. 247. – The spouses can, at any time of the procedure, ask the judge to note their agreement to see their divorce pronounced by mutual consent by presenting an agreement to him regulating the consequences thereof.
“Art. 247-1. – The spouses can also, at any time during the procedure, when the divorce has been requested for final alteration of the marital bond or for fault, ask the judge to note their agreement to see the divorce pronounced for acceptance of the principle of marriage breakdown. .
“Art. 247-2. – If, in the context of proceedings instituted for definitive alteration of the marital bond, the defendant asks for a counterclaim for divorce for fault, the plaintiff can invoke the faults of his spouse to modify the basis of his request. ”
Chapter II
Divorce proceedings
Article 8
Articles 249, 249-3 and 249-4 of the Civil Code are amended as follows:
1 ° The first paragraph of Article 249 reads as follows:
“If a divorce petition must be filed in the name of an adult under guardianship, it is presented by the guardian, with the authorization of the family council if it has been instituted or of the guardianship judge. It is formed after the opinion of the attending physician and, as far as possible, after hearing the person concerned, as the case may be, by the family council or the judge. “;
2 ° Article 249-3 is completed by a sentence worded as follows:
“However, the judge may take the provisional measures provided for in Articles 254 and 255 and the urgent measures provided for in Article 257.”;
3 ° In article 249-4, after the words: “by mutual consent”, the words: “or for acceptance of the principle of marriage breakdown” are inserted.
Article 9
I. – The title of section 2 of chapter II of title VI of book I of the civil code reads as follows: “From the procedure applicable to divorce by mutual consent”.
II. – This section includes four articles 250, 250-1, 250-2 and 250-3 worded as follows:
“Art. 250. – The request for divorce is presented by the respective lawyers of the parties or by a lawyer chosen by mutual agreement.
“The judge examines the request with each of the spouses, then brings them together. He then calls the lawyer (s).
“Art. 250-1. – When the conditions provided for in article 232 are met, the judge approves the agreement regulating the consequences of the divorce and, by the same decision, pronounces it.
“Art. 250-2. – In the event of refusal of approval of the agreement, the judge may however approve the provisional measures within the meaning of articles 254 and 255 that the parties agree to take until the date on which the divorce judgment becomes legally binding. res judicata, provided that they are in the best interests of the child (ren).
“A new agreement can then be presented by the spouses within a maximum period of six months.
“Art. 250-3. – If a new agreement is not presented within the time limit set in article 250-2 or if the judge again refuses approval, the request for divorce lapses. ”
Article 10
I. – The title of section 3 of chapter II of title VI of book I of the civil code reads as follows: “The procedure applicable to other cases of divorce”.
This section includes Articles 251 to 259-3.
II. – It is inserted in this section a paragraph 1 entitled: “Of the initial request”, which includes article 251 as follows:
“Art. 251. – The spouse who files a request for divorce presents, by lawyer, a request to the judge, without indicating the grounds for the divorce. ”
Article 11
I. – After article 251 of the civil code, a paragraph 2 entitled: “On conciliation” is inserted, which includes articles 252, 252-1, 252-2, 252-3, 252-4 and 253.
II. – Article 252 of the same code, as it results from Article 6, is thus amended:
1 ° In the first paragraph, the words: “When divorce is requested for termination of cohabitation or for fault,” are deleted;
2 ° The second paragraph reads as follows:
“The judge seeks to reconcile the spouses both on the principle of divorce and on its consequences. ”
III. – Article 252-1 of the same code, as it results from article 6, is thus amended:
1 ° The second paragraph is worded as follows:
“The lawyers are then called to attend and participate in the interview . “;
2 ° The third paragraph is worded as follows:
“In the event that the spouse who has not made the request does not appear at the hearing or is unable to express his will, the judge shall discuss with the other spouse and invites him to reflect. ”
IV. – Article 252-3 of the same code, as it results from article 6, is worded as follows:
“Art. 252-3. – When the judge finds that the applicant maintains his request, he encourages the spouses to settle the consequences of the divorce amicably.
“He asks them to present for the judgment hearing a draft settlement of the effects of the divorce. To this end, he may take the provisional measures provided for in article 255. ”
V. – Article 253 of the same code is worded as follows:
“Art. 253. – The spouses can only accept the principle of the breakdown of marriage and the pronouncement of divorce on the basis of article 233 if they are each assisted by a lawyer. ”
Article 12
I. – After article 253 of the civil code, a paragraph 3 is inserted entitled: “Provisional measures”, which includes articles 254, 255, 256 and 257.
II. – Article 254 of the same code reads as follows:
“Art. 254. – At the hearing provided for in article 252, the judge prescribes, in consideration of any agreements between the spouses, the measures necessary to ensure their existence and that of the children until the date on which the judgment becomes binding. of res judicata. ”
III. – Article 255 of the same code reads as follows:
“Art. 255. – The judge may in particular:
“1 ° Suggest a mediation measure to the spouses and, after obtaining their agreement, appoint a family mediator to proceed with it;
“2 ° To order the spouses to meet a family mediator who will inform them about the object and the progress of the mediation;
“3 ° To rule on the modalities of the separate residence of the spouses;
“4 ° Allocate to one of them the enjoyment of housing and household furniture or share this enjoyment between them, specifying whether it is free or not and, where applicable, noting the agreement of the spouses on the amount an occupancy allowance;
“5 ° Order the return of clothing and personal items;
“6 ° Fix the alimony and the provision for legal costs that one of the spouses must pay to his spouse, designate the one or those of the spouses who will have to ensure the provisional settlement of all or part of the debts;
“7 ° Grant one of the spouses provisions to be used against his rights in the liquidation of the matrimonial regime if the situation makes it necessary;
8 ° To rule on the attribution of the enjoyment or management of common or undivided property other than those referred to in 4 °, subject to the rights of each of the spouses in the liquidation of the matrimonial regime;
“9 ° Designate any qualified professional with a view to drawing up an estimated inventory or making proposals regarding the settlement of the pecuniary interests of the spouses;
“10 ° Appoint a notary with a view to drawing up a plan for the liquidation of the matrimonial regime and the formation of the lots to be shared. ”
Article 13
I. – After article 257 of the civil code, a paragraph 4 is inserted entitled: “From the initiation of the divorce proceedings”, which includes articles 257-1, 257-2 and 258.
II. – Articles 257-1 and 257-2 of the same code are worded as follows:
“Art. 257-1. – After the non-conciliation order, a spouse may institute proceedings or form a counterclaim for acceptance of the principle of marriage breakdown, for permanent alteration of the marital bond or for fault.
“However, when at the conciliation hearing the spouses have declared that they accept the principle of the breakdown of the marriage and the pronouncement of the divorce on the basis of article 233, the proceedings can only be initiated on this same basis.
“Art. 257-2. – Under penalty of inadmissibility, the originating demand includes a proposal for the settlement of the pecuniary and patrimonial interests of the spouses. ”
Article 14
I. – Section 4 of Chapter II of Title VI of Book I of the Civil Code becomes paragraph 5 of Section 3 of the same chapter.
II. – Article 259 of the same code is completed by a sentence worded as follows:
“However, the descendants can never be heard on the grievances invoked by the spouses. ”
III. – Article 259-1 of the same code is worded as follows:
“Art. 259-1. – A spouse may not add to the proceedings evidence that he has obtained by violence or fraud. ”
IV. – In the first paragraph of article 259-3 of the same code, the words: “designated by him” are replaced by the words: “and other persons designated by him in application of 9 ° and 10 ° of article 255, “.
V. – In article 272 of the same code, as it results from article 6, the words: “in the agreement referred to in article 278” are deleted.
Chapter III
Consequences of Divorce
Article 15
Article 262-1 of the Civil Code reads as follows:
“Art. 262-1. – The divorce judgment takes effect in the relationship between the spouses, with regard to their property:
“- when it is pronounced by mutual consent, on the date of the approval of the agreement regulating all the consequences of the divorce , unless the latter provides otherwise;
“- when it is pronounced for acceptance of the principle of marriage breakdown, for permanent alteration of the marital bond or for fault, on the date of the non-conciliation order.
“At the request of one of the spouses, the judge can fix the effects of the judgment on the date on which they ceased to cohabit and collaborate. This request can only be made on the occasion of the divorce action. The enjoyment of conjugal accommodation by only one of the spouses remains free until the order of non-conciliation, unless the judge decides otherwise. ”
Article 16
Paragraph 1 of section 2 of chapter III of title VI of book I of the civil code includes, in addition to articles 263 and 265-2 as it results from article 6, three articles 264, 265 and 265-1 as well written:
“Art. 264. – Following the divorce, each of the spouses loses the use of the name of their spouse.
“One of the spouses may nevertheless retain the use of the other’s name, either with the agreement of the latter, or with the authorization of the judge, if he demonstrates a particular interest in him or in the children.
“Art. 265. – Divorce has no incidence on the matrimonial advantages which take effect during the marriage and on the donations of goods present whatever their form.
“Divorce entails the automatic revocation of the matrimonial advantages which take effect only on the dissolution of the matrimonial regime or on the death of one of the spouses and of the provisions on account of death, granted by a spouse to his spouse by contract of marriage or during the union, except contrary will of the spouse who consented to them. This will is noted by the judge at the time of the divorce pronouncement and makes the advantage or the maintained provision irrevocable.
“Art. 265-1. – Divorce has no impact on the rights that one or the other of the spouses holds by law or by agreements concluded with third parties. ”
Article 17
I. – Paragraph 2 of section 2 of chapter III of title VI of book I of the civil code is entitled: “Consequences specific to divorces other than by mutual consent”.
II. – It includes four articles 266, 267, 267-1 and 268 worded as follows:
“Art. 266. – Without prejudice to the application of article 270, damages may be awarded to a spouse in compensation for the consequences of a particular gravity which he suffers as a result of the dissolution of the marriage, either when he was defendant to a divorce pronounced for definitive alteration of the marital bond and that he himself had not filed for divorce, that is to say when the divorce is pronounced at the exclusive fault of his spouse.
“This request can only be made on the occasion of the
“Art. 267. – In the absence of a conventional settlement by the spouses, the judge, by pronouncing the divorce, orders the liquidation and the sharing of their patrimonial interests.
“It rules on requests for maintenance in joint possession or preferential allocation.
“He may also grant one or both spouses an advance on his share of the community or of undivided property.
“If the plan to liquidate the matrimonial regime established by the notary appointed on the basis of 10 ° of article 255 contains sufficient information, the judge, at the request of one or the other of the spouses, shall rule on the disagreements persisting between them.
“Art. 267-1. – If the liquidation and partition operations are not completed within one year after the divorce judgment has become final, the notary sends the court a report of difficulties containing the respective declarations of the parts.
“In view of this, the court may grant an additional period of up to six months.
“If, at the end of this period, the operations are still not completed, the notary shall inform the court. It establishes, if the changes made it necessary, a new report.
“The court rules on the disputes remaining between the parties and refers them to the notary in order to establish the liquidation statement.
“Art. 268. – The spouses may, during the proceedings, submit to the approval of the judge agreements regulating all or part of the consequences of the divorce.
“The judge, after having verified that the interests of each of the spouses and children are preserved, approves the agreements by pronouncing the divorce. ”
Article 18
I. – Article 270 of the Civil Code reads as follows:
“Art. 270. – Divorce puts an end to the duty of help between spouses.
“One of the spouses may be required to pay the other a benefit intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective living conditions. This service has a fixed rate. It takes the form of a capital, the amount of which is set by the judge.
“However, the judge may refuse to grant such a benefit if fairness demands it, either in consideration of the criteria provided for in article 271, or when the divorce is pronounced at the exclusive fault of the spouse who requests the benefit of this service, in view of the specific circumstances of the termination. ”
II. – Article 271 of the same code is supplemented by eight paragraphs thus worded:
“For this purpose, the judge takes into account in particular:
” – the duration of the marriage;
“- the age and state of health of the spouses;
“- their professional qualification and situation;
“- the consequences of the professional choices made by one of the spouses during their cohabitation for the education of the children and the time that will still have to be devoted to it or to promote the career of his spouse to the detriment of his own;
“- the estimated or foreseeable patrimony of the spouses, both in capital and in income, after the liquidation of the matrimonial regime;
“- their existing and foreseeable rights;
“- their respective retirement pensions situation. ”
III. – Article 274 of the same code reads as follows:
“Art. 274. – The judge decides on the modalities according to which the compensatory capital allowance will be executed among the following forms:
“1 ° Payment of a sum of money, the pronouncement of the divorce being able to be subordinated to the constitution of the guarantees provided for in the article 277;
“2 ° Allocation of property or a temporary or life right of use, habitation or usufruct, the judgment operating a forced transfer in favor of the creditor. However, the agreement of the debtor spouse is required for the attribution of ownership of property which he has received by inheritance or gift. ”
IV. – Article 275 of the same code, as it results from article 6, is thus amended:
1 ° In the first paragraph, the reference: “275” is replaced by the reference: “274”, and the words: “monthly or annual” are replaced by the word: “periodical”;
2 ° In the second paragraph, the word: “notable” is replaced by the word: “important”;
3 ° The third paragraph is deleted;
4 ° The penultimate paragraph is worded as follows:
“The debtor can free himself at any time from the balance of the indexed capital. “;
5 ° The last paragraph is completed by the word: “indexed”.
V. – Article 275-1 of the same code is thus re-established:
“Art. 275-1. – The payment terms provided for in the first paragraph of article 275 do not exclude the payment of part of the capital in the forms provided for in article 274. ”
VI. – Article 276 of the same code reads as follows:
“Art. 276. – Exceptionally, the judge may, by specially reasoned decision, when the age or state of health of the creditor does not allow him to meet his needs, fix the compensatory allowance in the form of a life annuity. It takes into account the elements of assessment provided for in article 271.
“The amount of the pension may be reduced, when circumstances so require, by the allocation of a capital fraction among the forms provided for in the article 274. ”
VII. – Article 276-4 of the same code is thus amended:
1 ° The first two paragraphs are replaced by a paragraph worded as follows:
“The debtor of a compensatory allowance in the form of an annuity may, at any time, submit a request to the judge for the substitution of a capital for all or part of the annuity. The substitution is carried out according to modalities fixed by decree of the Council of State. “;
2 ° It is supplemented by a paragraph worded as follows:
“The execution modalities provided for in articles 274, 275 and 275-1 are applicable. The judge’s refusal to substitute a capital for all or part of the annuity must be specially motivated. ”
VIII. – After article 279 of the same code, an article 279-1 is inserted as follows:
“Art. 279-1. – When, in application of article 268, the spouses submit an agreement relating to the compensatory allowance to the judge for approval, the provisions of articles 278 and 279 are applicable. ”
IX. – Article 280 of the same code is worded as follows:
“Art. 280. – On the death of the debtor spouse, the payment of the compensatory allowance, whatever its form, is deducted from the inheritance. The payment is borne by all the heirs, who are not personally bound by it, within the limit of the estate assets and, in the event of insufficiency, by all the legatees by particular title, in proportion to their emolument, subject to the application of section 927.
“When the compensatory allowance has been fixed in the form of a capital payable under the conditions of article 275, the balance of this indexed capital becomes immediately payable.
“When it has been fixed in the form of an annuity, a capital immediately payable is substituted. The substitution is carried out according to modalities fixed by decree of the Council of State. ”
X. – Article 280-1 of the same code is worded as follows:
“Art. 280-1. – By way of derogation from article 280, the heirs may decide together to maintain the forms and methods of payment of the compensatory allowance which were incumbent on the debtor spouse, by personally committing themselves to the payment of this benefit. Under penalty of nullity, the agreement is recorded by a notarial deed. It is enforceable against third parties from its notification to the creditor spouse when the latter has not intervened in the act.
“When the terms of payment of the compensatory allowance have been maintained, the actions provided for in the second paragraph of article 275 and in articles 276-3 and 276-4, depending on whether the compensatory allowance takes the form of capital or ‘a temporary or life annuity, are open to the heirs of the debtor. They may also be released at any time from the balance of the indexed capital when the compensatory allowance takes the form provided for in the first paragraph of article 275. ”
Article 19
Paragraph 5 of section 2 of chapter III of title VI of book I of the civil code becomes paragraph 4. It includes an article 285-1 worded as follows:
“Art. 285-1. – If the premises used as accommodation for the family belong to one or more of the spouses, the judge may lease it to the spouse who alone or jointly exercises parental authority over one or more of their children when those -ci usually reside in this accommodation and their interest so dictates.
“The judge fixes the duration of the lease and can renew it until the majority of the youngest of the children.
“The judge can terminate the lease if new circumstances justify it. ”
Chapter IV
Of legal separation
Article 20
I. – After the first sentence of the first paragraph of Article 297 of the Civil Code, a sentence worded as follows is inserted:
“However, when the main request for divorce is based on the definitive alteration of the marital bond, the counterclaim can only tend to divorce. ”
II. – After article 297 of the same code, an article 297-1 is inserted as follows:
“Art. 297-1. – When a petition for divorce and a petition for legal separation are presented concurrently, the judge first examines the petition for divorce. He pronounces this as soon as the conditions are met. Failing that, it rules on the request for legal separation.
“However, when these requests are based on fault, the judge examines them simultaneously and, if he accepts them, pronounces a divorce with regard to shared wrongs with regard to the two spouses. ”
III. – Article 300 of the same code reads as follows:
“Art. 300. – Each of the separated spouses retains the use of the name of the other. However, the judgment of legal separation or a subsequent judgment may, taking into account the respective interests of the spouses, prohibit them from doing so. ”
IV. – The third paragraph of article 303 of the same code is replaced by two paragraphs worded as follows:
“This pension is subject to the rules of maintenance obligations.
“However, when the consistency of the property of the debtor spouse lends itself to it, the alimony is replaced, in whole or in part, by the constitution of a capital, according to the rules of articles 274 to 275-1, 277 and 281. If this capital becomes insufficient to cover the creditor’s needs, the creditor may request a supplement in the form of alimony. ”
Chapter V
Property of the spouses
Article 21
I. – Article 1096 of the Civil Code reads as follows:
“Art. 1096. – The donation of future goods made between spouses during the marriage will always be revocable.
“The gift of present goods made between spouses will be revocable only under the conditions provided for by articles 953 to 958.
” Donations made between spouses of present goods or of future goods are not revoked by the occurrence of children. ”
II. – The last sentence of article 1442 of the same code is deleted.
III. – In the first paragraph of article 265-2 of the same code, as it results from article 6, the words: “of the community” are replaced by the words: “of their matrimonial regime”.
IV. – The second paragraph of article 265-2 of the same code, as it results from article 6, is worded as follows:
“When the liquidation relates to property subject to land registration, the agreement must be concluded by notarial deed. ”
V. – In the first paragraph of article 1451 of the same code, the words:” thus passed “are replaced by the words:” passed in application of article 265-2 “.
VI. – In article 1518 of the same code, the words: “unless the matrimonial advantages have been automatically lost or revoked following a judgment of divorce or legal separation, without prejudice to the application of article 268 ”are replaced by the words:“ subject to article 265 ”.
VII. – Article 1477 of the same code is supplemented by a paragraph worded as follows:
“Likewise, anyone who has knowingly concealed the existence of a common debt must assume it definitively. ”
Chapter VI
Miscellaneous provisions
Article 22
I. – The third paragraph of Article 220-1 of the Civil Code is replaced by two paragraphs worded as follows:
“When violence by one of the spouses endangers his or her spouse, one or more children, the judge may rule on the separate residence of the spouses, specifying which of the two will continue to reside in the conjugal accommodation. Except in special circumstances, the enjoyment of this accommodation is attributed to the spouse who is not the author of the violence. The judge decides, if necessary, on the modalities of exercise of parental authority and on the contribution to the expenses of the marriage. The measures taken shall lapse if, at the end of a period of four months from their pronouncement, no petition for divorce or legal separation has been filed.
“The duration of the other measures taken in application of this article must be determined by the judge and may not, including an extension, exceed three years. ”
II. – Article 228 of the same code, as it results from Article 6, is inserted before Chapter I of Title VI of Book I of the same Code.
The first sentence of the fourth paragraph of this article is worded as follows:
“He is also solely competent, after the divorce is pronounced, whatever the cause, to rule on the modalities of the exercise of parental authority, on the modification of the contribution to the maintenance and the education of the children and to decide to entrust them to a third party as well as on the revision of the compensatory allowance or its terms of payment. ”
III. – In article 245-1 of the same code, as it results from article 6, the words: “In the event of divorce for fault, and” are deleted.
IV. – In the same article, the words: “family affairs” are deleted.
V. – In article 256 of the same code, the words: “The consequences of separation for” are replaced by the words: “Provisional measures relating to”.
VI. – The first paragraph of article 276-3 of the same code reads as follows:
“The compensatory allowance fixed in the form of an annuity may be revised, suspended or canceled in the event of a significant change in the resources or the needs of one or the other of the parties. ”
VII. – In article 278 of the same code, the words: “joint application” are replaced by the words: “divorce by mutual consent”.
VIII. – Article 279 of the same code is thus amended:
1 ° In the first sentence of the last paragraph, the words: “and the needs” are replaced by the words: “or the needs of one or the other”;
2 ° The last sentence of the last paragraph reads as follows:
“The provisions provided for in the second and third paragraphs of article 275 as well as in articles 276-3 and 276-4 are also applicable, depending on whether the compensatory allowance takes the form a lump sum or a temporary or life annuity. “;
3 ° It is supplemented by a paragraph worded as follows:
“Unless otherwise provided in the agreement, articles 280 to 280-2 are applicable. ”
IX. – Article 280-2 of the same code, as it results from article 6, is thus amended:
1 ° The first sentence is deleted;
2 ° The words: “of the annuity paid to the creditor” are replaced by the words: “of the amount of the compensatory allowance, when this, on the day of death, took the form of an annuity”;
3 ° The beginning of the last sentence is worded as follows: “If the heirs use the option provided for in article 280-1 and except decision … (the rest without change). “;
4 ° After the words: “of the judge”, the end of the last sentence reads as follows: “, a deduction of the same amount continues to be made if the creditor loses his right or suffers a change in his right to a survivor’s pension. ”
X. – In the first sentence of article 281 of the same code, as it results from article 6, after the word:” are “, are inserted the words:”, whatever their terms of payment. , “.
XI. – In article 298 of the same code, the words: “in chapter II” are replaced by the words: “in article 228 as well as in chapter II”.
XII. – Article 301 of the same code is thus amended:
1 ° The second sentence is deleted;
2 ° In the last sentence, the words: “on joint request” are replaced by the words: “by mutual consent”.
XIII. – In article 306 of the same code, the word: “three” is replaced by the word: “two”.
XIV. – In article 307 of the same code, the words: “by joint request” and “on joint request” are replaced by the words: “by mutual consent”.
XV. – In the last paragraph of article 1397-1 of the same code, the reference: “1450” is replaced by the reference: “265-2”.
Article 23
I. – The following are repealed:
1 ° Chapter VIII of Title V of Book I of the Civil Code;
2 ° Articles 231, 235 and 236, 239 to 241, 243, 261 to 261-2, 264-1, 268-1 and 269, 273, 276-3 (third paragraph), 282 to 285, 297 (second paragraph ), 309 and 1099 (second paragraph) of the same code;
3 ° Articles 20 to 23 of law n ° 2000-596 of June 30, 2000 relating to the compensatory allowance in divorce matters;
4 ° Article 52 of Law n ° 93-22 of January 8, 1993 amending the civil code relating to civil status, the family and the rights of the child and establishing the judge in family matters.
II. – The title and the division: “Section 3. – Divorce for fault” of Chapter I of Title VI of Book I of the Civil Code are repealed.
TITLE II
MISCELLANEOUS AND TRANSITIONAL PROVISIONS
Article 24
In the second paragraph of Article L. 262-35 of the Social Action and Families Code, the references: “, 282, 334” are deleted.
Article 25
The general tax code is thus modified:
1 ° Article 80 quater is thus modified:
a) The reference: “275-1” is replaced by the reference: “275”;
b) The reference: “or 278” is replaced by the references: “, 278 or 279-1”;
c) The reference: “294” is replaced by the reference: “373-2-3”;
2 ° The first paragraph of 2 ° of II of article 156 is thus amended:
a) The reference: “and 367” is replaced by the references: “, 367 and 767”;
b) The reference: “275-1” is replaced by the reference: “275”;
c) The reference: “or 278” is replaced by the references: “, 278 or 279-1”;
d) The reference: “294” is replaced by the reference: “373-2-3”;
3 ° In the first sentence of article 757 A, the reference: “294” is replaced by the reference: “373-2-3”.
Article 26
Article 199 octodecies of the general tax code is amended as follows:
1 ° In the first paragraph of I, the words: “mentioned in 1 of article 275 of the civil code and in article 275-1 of the same code, if they are carried out ”are replaced by the words:“ and the attribution of goods or rights carried out in execution of the compensatory allowance under the conditions and according to the modalities defined in articles 274 and 275 of the civil code ”and, after the words: “over a period”, are inserted the words: “, in accordance with the divorce agreement approved by the judge or the divorce decree,”;
2 ° The second paragraph of the same paragraph is replaced by two paragraphs as follows:
“The tax reduction is equal to 25% of the amount of payments made, property or rights attributed, retained for the value set in the divorce agreement approved by the judge or by the divorce decree, and within the limit of ‘a ceiling equal to EUR 30,500 assessed in relation to the period mentioned in the first paragraph.
“When the compensatory allowance takes the form of an annuity in accordance with the provisions of Articles 276, 278 and 279-1 of the Civil Code, the substitution of a capital for future arrears, paid or allocated over a period at most equal to twelve months from the date on which the judgment pronouncing the conversion becomes final, also gives entitlement to the tax reduction. Its base is then equal to the total reconstituted capital limited to 30,500 EUR and retained in the proportion that exists between the capital due on the date of the conversion and the total capital reconstituted on this same date. The total reconstituted capital means the value of the capital paid or allocated on the date of conversion, increased by the sum of the pensions paid up to on the day of the conversion and revalued according to the variation in the average annual consumer price index observed between the year of payment of the annuity and that of the conversion. “;
3 ° In the last paragraph of the same paragraph:
a) The words: “the payments are distributed” are replaced by the words: “the payment of sums of money, the allocation of goods or rights are made”;
b) The words: “is passed” are replaced by the words: “or the judgment pronouncing the conversion of annuity into capital, are passed”;
c) The words: “made during the year in question and all the payments” are replaced by the words: “of sums of money, property or rights allocated during the year in question, and the total amount of capital as set out in the divorce judgment or the judgment pronouncing the conversion ”;
d) The words: “carry out over the period referred to” are replaced by the words: “carry out over the period mentioned”;
4 ° At the beginning of II, the words: “Notwithstanding the situation referred to in the third paragraph,” are inserted.
Article 27
The second paragraph of article 862 of the general tax code is supplemented by the words: “as well as the enforceable copies of divorce judgments issued in application of article 232 of the civil code”.
Article 28
The general tax code is thus amended:
1 ° After article 1133 bis, an article 1133 ter is inserted as follows:
“Art. 1133 ter. – Subject to the application of the taxation provided for in article 1020 of this code, the capital payments made in application of articles 274, 278 and 279-1 of the civil code and which are not subject to the provisions of the Article 80 quater of this code are subject, when they come from goods other than those referred to in article 748, to the collection of a fixed tax of EUR 75.
“These provisions are applicable to conversions into capital carried out in application of articles 276-4 and 280 of the Civil Code. “;
2 ° The last two sentences of article 757 A are deleted;
3 ° In the first sentence of article 1020, the reference: “and 1133” is replaced by the references: “, 1133 and 1133 ter”.
Article 29
It is inserted, after article 9-2 of law n ° 91-647 of 10 July 1991 on legal aid, an article 9-3 worded as follows:
“Art. 9-3. – When the cassation appeal is likely to result in the annulment of a decision fixing a termination indemnity, the amount of this indemnity is excluded from the assessment of resources. ”
Article 30
After article 66 of law n ° 91-650 of July 9, 1991 reforming civil enforcement procedures, an article 66-1 is inserted as follows:
“Art. 66-1. – Articles 62, 65 and 66 of this law as well as articles L. 613-1 to L. 613-5 of the construction and housing code are not applicable to the expulsion of the violent spouse ordered by the family court judge on the basis of article 220-1 of the civil code. ”
Article 31
Without prejudice to the application of the time limits mentioned in article 267-1 of the civil code, in the departments of Bas-Rhin, Haut-Rhin and Moselle, the procedure is, from the appointment of the notary, subject to to the provisions of Title VI of the Law of June 1, 1924 bringing into force French civil legislation in the departments of Bas-Rhin, Haut-Rhin and Moselle.
Article 32
I. – This law is applicable in New Caledonia, French Polynesia, Wallis and Futuna and Mayotte.
II. – Article 52-3 of law n ° 2001-616 of July 11, 2001 relating to Mayotte reads as follows:
“Art. 52-3. – The provisions of the Civil Code relating to divorce and legal separation are applicable in Mayotte to persons having civil status under local law reaching the age required to marry as of January 1, 2005. ”
III. – After article 2290 of the civil code, an article 2290-1 is inserted as follows:
“Art. 2290-1. – The provisions of Title VI of Book I are applicable in Mayotte to persons having civil status under local law reaching the age required to marry as of January 1, 2005. ”
Article 33
I. – This law will come into force on January 1, 2005.
II. – It will apply to divorce proceedings initiated before its entry into force with the following exceptions:
a) When the temporary agreement was approved before the entry into force of this law, the divorce action is continued and judged in accordance with ancient law;
b) When the summons has been issued before the entry into force of this law, the divorce action is continued and judged in accordance with the old law.
By way of derogation from b, the spouses may avail themselves of the provisions of articles 247 and 247-1 of the civil code; divorce can also be pronounced for definitive alteration of the marital bond if the conditions of article 238 are met and in compliance with the provisions of article 246.
III. – The provisions of II are applicable to legal separation proceedings.
IV. – The appeal and the cassation appeal are formed, investigated and judged according to the rules applicable at the time of the pronouncement of the first instance decision.
V. – Conversion requests are made, investigated and judged in accordance with the rules applicable when the legal separation is pronounced.
VI. – The life annuities fixed by the judge or by agreement before the entry into force of the law n ° 2000-596 of June 30, 2000 relating to the compensatory allowance in divorce matters can be revised, suspended or canceled at the request of the debtor or his heirs when their continued existence would provide the creditor with a manifestly excessive advantage with regard to the criteria laid down in Article 276 of the Civil Code.
Article 276-3 of this code is applicable to the revision, suspension or cancellation of life annuities fixed by the judge or by agreement before the entry into force of this law.
The substitution of a capital for the life annuities fixed by the judge or by agreement before the entry into force of this law may be requested under the conditions laid down in article 276-4 of the same code.
VII. – Temporary pensions fixed by the judge or by agreement before the entry into force of this law may be revised, suspended or canceled in the event of a significant change in the resources or the needs of one or the other of the parties. Their revision cannot lead to an extension of their initial duration, except with the agreement of the parties. The review may not have the effect of increasing the pension to an amount greater than that initially set by the judge.
The substitution of a capital for the temporary annuities fixed by the judge or by agreement before the entry into force of this law may be requested under the conditions provided for in article 276-4 of the civil code.
VIII. – Compensatory benefits fixed by the judge or by agreement before the entry into force of this law in the form provided for in the first paragraph of article 275 of the civil code, as it results from article 6, may be revised under the conditions provided for in the second paragraph of this same article.
IX. – VI and VII are applicable to pending proceedings which have not given rise to a decision which has become final.
X. – The provisions of Articles 280 to 280-2 of the Civil Code, as it results from Article 6, are applicable to compensatory benefits allocated before the entry into force of this law except when the debtor’s estate has gave rise to final sharing on that date. In the latter case, the provisions provided for in the second and third paragraphs of VI, VII and VIII are applicable to the heirs of the debtor. These can also be released at any time from the balance of the indexed capital when the compensatory allowance takes the form provided for in the first paragraph of article 275 of the civil code, as it results from article 6.
XI. – Reversion pensions paid by the spouse who died before the date of entry into force of the aforementioned law n ° 2000-596 of June 30, 2000 may be, by decision of the judge seized by the heirs of the debtor of the compensatory allowance, deducted from the amount of current pensions.
Article 34
In article 61 of the aforementioned law n ° 2001-616 of 11 July 2001, the words: “of the parties” are replaced by the words: “of the most diligent party”.
Article 35
Article 64 of the aforementioned law n ° 2001-616 of 11 July 2001 is repealed.
This law will be executed as state law.
