Show me the money – key differences between French and English financial order applications in divorce proceedings

FRENCH VERSION / VERSION FRANÇAISE

The divorce application has been lodged. The focus can now switch to the two other key components of a separation, of which one is the finances. The process of applying for a financial order, and what order is made at the end, will be an important factor in deciding where to divorce. Many clients assume that processes in England and in France are largely similar. However, this is not the case.

In this blog, we summarise the key stages in both French and English financial order applications, including the application, supporting information, hearings, criteria and available orders.

Please click on the key stages below to reveal the information.

The application

Proceedings start on the issuing of a Form A - a short form setting out which types of financial orders you are applying for. Prior to completing the application form, you must attend a Mediation, Information and Assessment Meeting (MIAM), the purpose of which is to consider the option of non-court dispute resolution (unless exempt).

The form is sent to the court, which is issued and then served on the other party. The court also sets a timetable for disclosure and a date for the first hearing (known as the First Appointment).

Parties can be litigants in person for these proceedings. 

The French system does not have a separate application for financial proceedings. These are in fact dealt with during the course of the divorce proceedings (along with any matters relating to children). Once a divorce petition has been served, prior to the first hearing, the parties usually make written submissions as to interim arrangements and at the first hearing the judge decides what interim measures s/he will order.

Legal representation is now compulsory from the beginning of the proceedings. 

 

Financial Disclosure

 The most important document required is the Form E. This form provides full financial disclosure and is completed by both parties. Supporting documents are also required such as payslips, property valuations, bank statements and pension valuations. The purpose is to ensure that both parties (and the court) have full knowledge of the financial resources of the other.

Other documentation which will be produced include a chronology of the pertinent dates, a statement of issues which details the points in contention and a questionnaire in which one spouse will request further information or documentation from the other.

It is expected that you provide at least the last three payslips and the most recent tax declaration. Each party can ask for whichever documents they wish to see relating to any assets or financial information that could have a bearing on the final decision. However, no standard or definitive list of supporting documentation is required.

 

Hearings

 There are 3 main hearings in financial applications:

1. First Appointment
   This hearing is largely procedural. The judge makes directions as to the future conduct of the case including directions for valuations, further disclosure and evidence.  The parties can agree to use the date set for the First Appointment as a Financial Dispute Resolution Appointment.
2. Financial Dispute Resolution Appointment
   The purpose of this hearing is to encourage the parties to reach a settlement and it is a “without prejudice” hearing meaning that concessions made cannot be referred to at subsequent hearings. By this point, the court should have all relevant financial information, including valuations and each party should have made an offer of settlement.  The court will hear the parties’ positions and will give his/her view on a likely outcome, with a view to encouraging negotiation and settlement.
3. Final Hearing
   If the parties remain in dispute, the case is listed for a final hearing. After hearing oral evidence from all relevant parties, the judge will make a final order as to how the assets and income are divided. 

As the finances are dealt with at the same time and in the same proceedings as the divorce and the children issues, there are no separate hearings specifically related to finances. The most important hearings are as follows:

1. Orientation and interim measures hearing (audience d’orientation et sur mesures provisoires)
   This is the first hearing after a divorce petition has been lodged. Submissions are made and the judge will decide on interim measures, which include interim decisions as to finances (such as spousal maintenance), and will set a timetable for the procedure. At this point, a notary is likely to be appointed to prepare a report on how the matrimonial assets should be divided.
2. Final Hearing
   The judge will rule on the prestation compensatoire (explained further below), if any, and also the division of matrimonial assets. Usually, the parties are not heard (there is no oral evidence) and it is for the lawyers to make submissions. By this point, the judge will have the notary’s report although it is not obligatory to follow it.

 

Criteria

In coming to a decision, the Judge will consider a number of different statutory factors including the parties’ needs, length of the marriage, ages of the parties, earning capacity, assets, living expenses, standard of living and the needs of any children. The aim is to try and achieve a ‘clean break’ between the parties.

In fixing the prestation compensatoire, the Judge considers the needs of the spouse to whom it is paid and the resources of the other, taking into account the situation at the time of the divorce and its evolution in the foreseeable future.

As in England, he will consider a number of factors as set out in the Civil Code, including the length of the marriage, earning capacity, health and age of the spouses, retirement plans, contributions to family life and estimated capital / income after the liquidation of the matrimonial regime. 

 

Available orders

The Matrimonial Causes Act 1973 gives judges the ability to make a number of different financial orders. These include the following:

• Periodical payments (for children or spousal maintenance)
• Lump sum orders
• Sale or transfer of property
• Pension Sharing

The main benefit takes the form of a prestation compensatoire, which aims to compensate for the disparity in the respective spouses’ finances created by the breakdown of the marriage. This is usually in the form of a capital lump sum and is only paid in instalments if a lump sum is not affordable. There is a limit of eight years maximum for payment and the instalments cannot be increased (although they can be decreased). While there is the possibility of a lifetime payment, this is rare and is usually seen in cases where one party is very old and has little chance of finding employment.

Contrary to the power of the English courts, French courts cannot make pension sharing orders. However, the parties’ respective pension rights are taken into account by the judge when fixing the prestation compensatoire.

In France, the division of assets is affected by the matrimonial property regime chosen at the time of marriage. If none was chosen, the default is the ‘community of property reduced to shared assets’ regime (communaute reduite aux acquets). Under this regime, ‘common assets/acquired property’ is distinguished from assets that belong exclusively to one spouse (normally what was owned before the marriage and any ‘donations’/gifts). All assets acquired during the marriage are assumed to be ‘acquired property’ unless it is proven otherwise. A notary is usually appointed during the interim proceedings to provide a report as to how the assets should be distributed on divorce, although as mentioned above this report is merely indicative. In highly complex cases, this process can take a number of years.  

 

Further information

As outlined above, there are key differences between the English and French divorce laws. It is important to seek specialist legal advice (from French and English lawyers) to provide you with strategic advice based on your own circumstances. There will be many different factors that contribute to the decision as to where you commence divorce proceedings, including but not limited to the financial outcome.

Our family team provides specialist expertise to separating couples and families with Anglo-French connections and our team is widely recognised as the leading service of its kind in England. Our team includes a number of French speakers, who regularly provide advice in French and in cases which sometimes involve proceedings in more than one court or jurisdiction. Please contact Claire Wood for more information.