LexInter | June 4, 2003 | 0 Comments

DIVORCE AT THE REQUEST OF ONE OF THE SPOUSES

NEW CODE OF CIVIL PROCEDURE
Sub-section I: Common rules
Paragraph 1: The initial request

Article 1106

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

The husband who wants to file a divorce petition submits a petition to the judge. He is required to appear in person when requesting emergency measures.
In the event of a duly noted impediment, the magistrate goes to the residence of the husband.

Article 1107

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

At the bottom of the request, the judge indicates the day, time and place at which he will proceed with the attempt at conciliation.
It prescribes, if necessary, the emergency measures provided for in article 257 of the Civil Code.
The prescription cannot be appealed against.

Paragraph 2: The attempt at conciliation

Article 1108

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree n ° 82-716 of August 10, 1982 art. 1st Official Journal of August 17, 1982)

The spouse who has not presented the request is summoned by the clerk to the conciliation attempt, by registered letter with acknowledgment of receipt, confirmed the same day, by simple letter. Under penalty of nullity, the registered letter must be sent at least fifteen days in advance and accompanied by a copy of the order. The clerk advises the lawyer.
The notification by registered letter is also attached, for information, a notice setting out, in particular, the provisions of articles 252 to 252-3 of the Civil Code.

Article 1109

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree nº 94-42 of January 14, 1994 art. 10 Official Journal of January 16, 1994 in force on February 1, 1994)
  In urgent cases, the family court judge may authorize one of the spouses, at his request, to assign the other spouse on a fixed day for the purpose of conciliation.

Article 1110

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

On the day indicated, the judge first decides, if necessary, on jurisdiction.
He reminds the spouses of the provisions of article 252-3 of the Civil Code; he then proceeds to the attempt at conciliation according to the prescriptions of articles 252 to 252-2 of the same code.
If one of the spouses is unable to go to the place indicated, the judge can set another, travel, even outside his jurisdiction, to hear on the spot the prevented spouse or give assignment to another. magistrate to proceed to this hearing.

Article 1111

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

The conciliation of the spouses is recorded by report.
In the absence of conciliation or if one of the spouses is not present, the judge issues an order by which he can either refer the parties, in accordance with article 252-1 of the Civil Code, to a new attempt at conciliation. , or immediately authorize the spouse who presented the initial request to summon his spouse.
In either case, he may order all or part of the provisional measures provided for in articles 254 to 257 of the Civil Code.
The judge, when authorizing summons, recalls in his order the time limits set out in article 1113 within which the summons must be issued.

Article 1112

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

The order issued in application of Articles 1110 and 1111 may be appealed within fifteen days of its notification, but only with regard to jurisdiction and provisional measures.

Article 1113

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree nº 94-42 of January 14, 1994 art. 10 Official Journal of January 16, 1994 in force on February 1, 1994)
 If the spouse has not used the authorization to summon within three months of the issuance of the order, his spouse may, within a further three months, summon him himself and request a judgment on the bottom.
If either of the spouses has not referred the matter to the family court judge at the end of the six months, the provisional measures shall lapse.

Paragraph 3: The instance

Article 1114

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

Counterclaims are admissible even on appeal.

Article 1115

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree nº 87-578 of July 22, 1987 art. 5 Official Journal of July 25, 1987)
  The only admissible intervention is that of a family member acting in application of articles 289 and 291 of the Civil Code.

Article 1116

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree nº 94-42 of January 14, 1994 art. 10 Official Journal of January 16, 1994 in force on February 1, 1994)

The family court judge may, even ex officio, instruct a notary or a qualified professional to draw up a draft settlement of benefits and pensions after divorce. He can also give the mission to a notary to draw up a plan for the liquidation of the matrimonial regime.

Paragraph 4: Provisional measures

Article 1117

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
 When ordering interim measures, the judge may take into account the arrangements that the spouses have already concluded between them.

Article 1118

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
In the event of the occurrence of a new fact, the judge may, until the jurisdiction is relinquished, remove, modify or supplement the provisional measures he has prescribed.

Article 1119

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)

The decision relating to provisional measures may be appealed within fifteen days of its notification.
In the event of an appeal, modifications to the provisional measures, if there is a new fact, can only be requested, as the case may be, from the first president of the court of appeal or from the advisor for the enforcement. in state.

Paragraph 5: The remedies

Article 1120

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
The judgment pronouncing the divorce is liable to acquiescence, except when it was rendered against a protected adult or in application of article 238 of the Civil Code.
In these same cases, the withdrawal of the appeal is null.

Article 1121

(inserted by Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
The time limit for appeal in cassation suspends the execution of the judgment pronouncing the divorce. The cassation appeal lodged within this period is also suspensive.

Article 1122

(Decree n ° 81-500 of May 12, 1981 art. 5 and 52 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981 in force on January 1, 1982)
(Decree n ° 84-618 of July 13, 1984, art. 23 and 31 Official Journal of July 18, 1984, corrigendum JORF August 18, 1984 in force on October 1, 1984)
(Decree nº 87-578 of July 22, 1987 art. 12 Official Journal of July 25, 1987)
 The suspensive effect which attaches to the cassation appeal as well as to its time limit does not apply to the provisions of the decision which concern pensions, the exercise of parental authority, the enjoyment of housing and furniture.

 

 

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