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Compensation

Verified 22 April 2022 - Legal and Administrative Information Directorate (Prime Minister)

The compensatory benefit makes it possible to eliminate the financial imbalances caused by divorce in the living conditions of ex-spouses. The application must be made during the divorce proceedings. The amount of the benefit may be determined by the spouses. In case of disagreement, the benefit is determined by the judge. In case of non-payment, it can be recovered by various means.

Divorce by mutual consent

The compensatory benefit makes it possible to eliminate the financial imbalances caused by divorce in the living conditions of ex-spouses.

The compensatory benefit is determined by the agreement of the spouses.

The agreement determines the amount of the benefit and whether it will be a capital payment or a annuity.

Future former spouses may provide that the benefit will cease upon the realisation of a specified event (e.g., remarriage).

As a reminder, within the framework of divorce by mutual consent, the future ex-spouses no longer have to go before the JAF: titleContent, unless the child wants to be heard by the judge. In the latter case, the agreement must be approved by the judge.

The agreement must respect the interests of the spouses. Thus, the agreement must not assign all property solely to one of the spouses or undervalue the property.

The date taken into account for the determination of the compensatory benefit is the date of the divorce.

Payment of capital is the general rule when there is an agreement between the former spouses.

The benefit may also be in the form of a limited-term annuity.

In the event of the death of the person paying the benefit, the payment of the benefit shall be levied on the estate and within estate.

Thus, the heirs are not personally obliged to pay the benefit.

Capital

If the payment of the benefit was made in the form of a capital payable by splitting, the balance of that capital becomes immediately payable by the creditor.

Rent

If it was an annuity, it also converts into immediately payable capital, the amount of which is determined by a scale after deduction of the reversionary pensions.

However, the heirs may decide, by notarized deed, to maintain the settlement conditions established before the debtor's death.

They are required to pay the benefit out of their personal funds if the estate is insufficient.

Other

The compensatory benefit makes it possible to eliminate the financial imbalances caused by divorce in the living conditions of ex-spouses.

The application must be made during the divorce proceedings by one of the spouses to the Family Court (JAF: titleContent).

The amount of the benefit may be determined by the spouses. In case of disagreement, the benefit is determined by the judge.

Decision of the judge

The compensatory benefit is assessed at the time of divorce. It shall be determined by the following criteria:

  • Needs of the spouse to whom it is paid
  • Other spouse's resources
  • Divorce Situation
  • Future developments

In case of disagreement between the spouses, the judge shall designate, in the divorce judgement, the former spouse who is to pay the compensatory benefit.

The judge shall take into account, in particular:

  • Duration of marriage
  • Age and health of spouses
  • Qualification and employment status of spouses
  • Consequences of the choice of one spouse during the common life for the education of the children or for the career of the other spouse to the detriment of his own
  • Estimated or predictable assets of spouses, in capital (example: a studio purchased) and income (example: studio rents) after the liquidation of the matrimonial regime. Pensions are included.

The spouses file with the judge a declaration of honour on the accuracy of their resources, income, assets and living conditions.

The judge may refuse the compensatory benefit depending on the situation of the former spouses (for example, in the absence of a significant difference in living conditions between the spouses).

The claimant may also refuse a divorce where the divorce is made at the sole fault of the spouse who claims the benefit in the particular circumstances of the marriage breakdown. Example: in case of violence by one of the spouses on the other.

The date taken into account for the determination of the compensatory benefit is the date of the divorce.

FYI  

the approved convention may be amended only by a new registration of the judge.

Agreement between spouses

The compensatory benefit may result from an agreement between the spouses and approved by the judge. The effect of the registered agreement is the same as a court decision.

Whatever the type of divorce, the agreement must respect the interests of the spouses. Thus, the agreement must not assign all property solely to one spouse or undervalue the property.

The date taken into account for the determination of the compensatory benefit is the date of the divorce.

The compensation benefit may be paid in:

  • Capital (e.g. payment of money)
  • Rent (term or life)
  • Mixed compensatory benefit (paid partly in the form of capital and partly in the form of an annuity)
  • Assignment of property furniture or real estate
Payment of capital

The payment of capital is the general rule.

In the absence of agreement between the spouses, the judge shall decide on the conditions for payment of the capital benefit:

  • by the payment of an amount of money, or
  • by the allocation of goods (in particular usufruct). The spouse must give his or her consent to the grant of property received by estate or donation.

A spouse who does not have sufficient cash to pay the capital in one lump sum may be allowed to pay the capital in several instalments within a maximum period of 8 years.

In this case, when there is a significant change in circumstances (e.g., unemployment), the spouse who pays the compensatory benefit may request a review.

On review, the judge may then decide exceptionally to authorise the payment of the capital for a total period exceeding 8 years.

However, the spouse who pays the benefit may at any time free herself from the remaining amounts by paying the remaining amounts in one instalment.

Payment of a life annuity

In exceptional cases, the judge may, by a decision specially justified, fix the benefit in the form of a life annuity. For example, if the situation of the recipient of the benefit (age or health status) does not allow him to support himself.

Spouses may apply to the judge to replace the payment of all or part of the annuity by, for example, the payment of money or the allocation of property.

The compensatory benefit fixed in the form of an annuity may be revised, suspended or withdrawn in the event of a material change in the resources or needs of either spouse (for example, when the annuitant spouse retires).

The amount of the annuity cannot be increased.

The replacement of an annuity with a capital (for example, an amount of money) or the revision of the benefit may be requested from the JAF: titleContent of the defendant's domicile. The judge shall assignment. Representation by lawyer is required.

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Warning  

the review, suspension or deletion is subject to the judge's discretion based on the information provided.

Payment of a mixed compensation benefit

Compensation mixed may be determined by the judge.

In this case, part of the benefit is paid in the form of a capital and another in the form of an annuity.

Assignment of movable or immovable property

When the compensatory benefit is paid in this form, the judge looks at the value of the abandoned property to determine whether the compensatory benefit is in the interests of both spouses.

Maintenance recovery procedures shall apply to compensatory benefits, except for the capital benefit which is excluded from the direct payment.

They include direct payment or the procedure for capturing remuneration.

The applicant may contact the Treasury if the direct payment and remuneration entry procedures have failed.

At the request of the creditor, Family Allowance Fund (Caf) may recover the compensation only if child support and the compensatory benefit is not paid.

Capital

In the event of the death of the person paying the benefit, the payment of the benefit shall be levied on the estate and within estate.

Thus, the heirs are not personally obliged to pay the benefit.

If the payment of the benefit was made in the form of a capital payable by splitting, the balance of that capital becomes immediately payable by the creditor.

However, the heirs may decide, by notarized deed, to maintain the settlement conditions established before the debtor's death. They are required to pay the benefit out of their personal funds if the estate is insufficient.

Rent

In the event of the death of the person paying the benefit, the payment of the benefit shall be levied on the estate and within estate.

Thus, the heirs are not personally obliged to pay the benefit.

If it was an annuity, it also converts into immediately payable capital, the amount of which is determined by a scale after deduction of the reversionary pensions.

However, the heirs may decide, by notarized deed, to maintain the settlement conditions established before the debtor's death. They are required to pay the benefit out of their personal funds if the estate is insufficient.

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