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Body Separation
Verified 08 December 2021 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice
An act drawn up and signed by private individuals without the presence of a notary (for example, a contract)
An act of the Commissioner of Justice (formerly an act of a bailiff) informing a person that a trial is being initiated against him or her and summoning him or her before a court
Person against whom legal action is brought
Approval of an act or agreement by the court
Application by which the defendant claims to obtain an advantage other than the mere rejection of his opponent's claim
Rules that determine the relationship of money between spouses and the fate of their property. They are fixed by law and, possibly, by a marriage contract.
A judgment which is no longer subject to appeal, either because the appeals have been exhausted or because the time limits have expired
That cannot be ignored by third parties, who must suffer the effects and respect them
Assumption that the child conceived or born during marriage is fathered by the husband
Obligation between spouses generally in the form of financial assistance paid by one spouse to another in need
A person obligated to another person to perform an obligation (which may be payment of a sum of money)
Original of a document (for example, a divorce agreement) drawn up by an authority (civil or administrative court, notary, commissioner of justice - former bailiff and judicial auctioneer, ...), who is obliged to keep it
Formalized writing for court action
Money received by a ministerial officer (notary, bailiff, etc.) in return for a service whose rate is regulated
Property belonging to one or other of the spouses
Legal separation is only for married couples. Unlike divorce, it allows spouses to remain married, but no longer live together. It may be established by privately signed document countersigned by each lawyer or by judgment of the court. This separation may have consequences for children, spouses' property, third parties... Legal separation ceases if the spouses resume their common life, if they divorce or if one of them dies.
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Separation before the judge
Unlike divorce, legal separation allows spouses to remain married, being allowed to live apart.
Legal separation always entails the separation of property and is subject to the procedural rules applicable to divorce.
The grounds for legal separation are the same as for divorce.
Warning
one de facto separation is different from a body separation. De facto separation refers to an unofficial situation in which spouses no longer live together but remain married. Legal separation is provided for by law and made official by the decision of a judge.
Legal separation concerns only married couples and whatever their matrimonial regime (community regime reduced to acquisitions, property separation regime, etc.).
Court having jurisdiction
The Family Court Judge (JAF: titleContent) of the court of the place of residence of the spouses has jurisdiction.
Application and procedure
The legal separation procedure before a judge is identical to that of the judicial divorce.
The request is made by subpoena by the lawyer of one of the spouses.
The other spouse must also be assisted or represented by a lawyer throughout the procedure.
The time allowed for defendant to get a lawyer is 15 days.
Who shall I contact
Content of the application
The application must contain the following elements:
- Location, day and time of the Orientation and Interim Measures Hearing (PMOI)
- Proposal for the liquidation of the financial and property interests of the spouses
- Provision of mediation in family matter
- Approval partial or complete agreements between the spouses on the exercise of parental authority and the consequences of separation
The reason for the legal separation (e.g. for fault) shall not be mentioned in the application. This can be done later in the procedure.
Orientation Hearing and Interim Measures (APMA)
During this hearing, the Jaf examines the case file. If one of the spouses so requests, the Jaf shall lay down provisional measures necessary for the life of the spouses or the child during the proceedings.
In particular, it may:
- Offer mediation with a family mediator to try to reach an agreement
- Deciding on separate residence
- Set the maintenance
- Assign to one of the spouses the enjoyment of the dwelling
- Appoint a notary for the liquidation of the matrimonial regime (procedure that lists and assesses the property and debts that will accrue to each of the spouses after separation).
The judge shall specify the effective date of the interim measures.
During the hearing, the spouses appear assisted by their lawyers or are represented by them. A spouse without a lawyer or who presents himself alone, without his lawyer, will not be heard by the judge.
The JAF may order the presence of the spouses if it deems it necessary to understand the situation.
The spouse against whom an application for legal separation is made may form a counterclaim in divorce.
The spouse against whom a divorce application is made may file a counterclaim for legal separation.
A spouse who files a divorce application may apply to replace it with a legal separation procedure, even on appeal. However, the opposite is not possible.
If an application for legal separation is filed by one of the spouses and the other spouse files a divorce application at the same time before the Jaf, the Jaf first examines the divorce application. If the conditions are met, divorce is granted. Otherwise, if all the conditions are not met, the Jaf will examine the request for legal separation.
When the two applications (divorce and legal separation) are based on fault, the Jaf examines the applications simultaneously. If he accepts them, he pronounces the divorce to the shared wrongs of the spouses.
FYI
if it has run out 2 years after the judgment on legal separation, divorce may be applied for.
Legal costs
The cost varies depending on the lawyer's fees chosen.
If the spouse has insufficient resources, he or she may apply for legal aid.
Notary's fees
Legal separation entails the separation of the property of the spouses.
The matrimonial regime must be liquidated in order to share the assets between the spouses (property, bank accounts, debts, credit, etc.).
Different types notary fees shall be borne by the spouses.
Effective Date
Legal separation shall take effect between the spouses on the day on which the judgment has become res judicata.
The judgment is enforceable to third parties from the day on which the civil registration formalities were completed.
Cessation of the duty of cohabitation
The spouses remain married, but are allowed to no longer live together.
Separation of property
Separation of bodies always leads to the separation of goods.
Married spouses under a community scheme shall liquidate their matrimonial regime. This liquidation is carried out before a notary.
The effective date of the legal separation on the property of the spouses shall be the date of the application for legal separation. At the request of one of the spouses, that date may be fixed by the judge at the date on which they ceased to live together.
The JAF: titleContent may also decide on the allocation of family housing.
FYI
spouses who are married under the division of property regime do not have to liquidate their matrimonial regime.
The regime for separated spouses will be that of the separation of property. For example, property purchased by one spouse during the legal separation will be considered personal property and not as belonging to the two spouses.
A spouse who takes credit or debt during legal separation must pay it alone.
Effects on children
The JAF: titleContent provides for the exercise of parental authority. It determines the place of residence of the child(ren), shall fix the amount of the maintenance, and shall organize the right of access and accommodation.
If pregnant during body separation, the presumption of paternity is excluded because of the lack of cohabitation.
Maintenance of marriage obligations
Other obligations arising out of marriage remain, in particular the duty of fidelity, emergency and support.
As a result, spouses cannot marry or enter into an agreement Civil partnerships: titleContent.
Maintenance payment to spouse
The duty to provide assistance still exists and may give rise to the payment of a maintenance to the needy husband. It may be granted by the judgment pronouncing legal separation or by a subsequent judgment.
If the consistency of the husband's property debtor This pension may be replaced by the payment of a capital sum.
Ability to keep the same username
The spouse who uses the other person's last name may keep it. However, if one of the spouses so requests, the Jaf may prohibit it.
Succession
If one of the separated spouses dies, the surviving spouse retains his or her statutory rights to inheritance.
Legal separation ceases if the spouses resume their common life, if they divorce or if one of them dies.
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Conversion to divorce
Legal separation automatically ends in the case of an application for conversion from separation to divorce.
The application for conversion to divorce is made by subpoena in court. The lawyer is obligatory.
Who shall I contact
It may be requested by one of the spouses only after 2 years after the judgment of legal separation. The divorce will be pronounced. The cause of separation becomes the cause of divorce.
In the case of a joint application by the spouses, the conversion of separation into divorce is not subject to the two-year period and may be requested at any time.
Resumption of community life
Between spouses, the system of separation of property will be maintained unless the couple chooses another matrimonial regime before a notary.
With regard to third parties, in order to have legal value, the resumption of a common life must be established by a notary or declared to a registrar. This declaration may be made in any town hall.
An entry shall be made in the margin of the marriage and birth certificates of the spouses.
Death
Legal separation ends when one of the spouses dies.
Mutual Consent
Unlike divorce, legal separation allows spouses to remain married, but to be allowed to no longer live together.
Separation of bodies always leads to the separation of goods.
The procedure for legal separation by mutual consent is identical to the procedure for divorce by mutual consent. A legal separation agreement between the spouses is drawn up by their respective lawyers and is registered with a notary.
FYI
one de facto separation is different from a body separation. De facto separation refers to an unofficial situation in which spouses no longer live together but remain married. Legal separation is provided for by law and is made official by a document written by lawyers and registered with a notary.
Legal separation concerns only married couples and whatever their matrimonial regime (community regime reduced to acquisitions, separation regime, etc.).
Each spouse duty have a lawyer to separate by mutual consent.
Who shall I contact
One fee agreement must be signed with the lawyer to to fix his fees.
If a spouse is under-resourced, he or she may apply for legal aid to cover all or part of these costs.
The lawyer shall send the draft agreement to the spouse whom he is assisting by registered letter with acknowledgement of receipt.
The draft may not be signed by the spouses before the expiry of a reflection period of 15 days from the reception.
The convention must be signed together by the spouses and their lawyers in 3 copies. Each spouse shall keep an original of the agreement together with its annexes. On the 3rde original is for the notary.
The agreement must then be deposited with a notary. It records it and keeps it in its archives called minutes.
The notary checks whether the procedure has been complied with in form, by the presence in the convention of the mandatory particulars. It checks, for example, whether each of the spouses has complied with the 15-day reflection period before signing the agreement.
The deposit of the agreement with the notary allows the agreement to be given definite date and enforceability, i.e. the Convention shall apply immediately.
The spouses may stipulate in the agreement that the consequences of the separation shall take effect at a later date.
Lawyer's fees
The cost varies depending on the lawyer's fees chosen.
If a spouse's resources are insufficient, he or she may apply for legal aid to cover all or part of these costs.
Notary's fees
Legal separation always entails the separation of the property of the spouses.
The matrimonial regime must be liquidated in order to share the assets between the spouses (property, bank accounts, debts, credits...).
Different types notary fees shall be borne by the spouses.
Effective Date
Legal separation shall take effect on the date of signature of the agreement, unless the spouses have agreed on another date.
The Convention is enforceable to third parties from the day on which the civil registration formalities were completed.
Cessation of the duty of cohabitation
The spouses remain married, but they are allowed to no longer live together.
Separation of property
Separation of bodies always leads to the separation of goods.
Spouses married under a community system will have to liquidate the matrimonial regime, unlike spouses married under the separation of property regime. The liquidation is carried out before a notary.
The spouses' regime will be that of the separation of property. For example, property purchased by one spouse during the legal separation will be considered personal property and not as belonging to the two spouses.
A spouse who takes credit or debt during legal separation will have to pay it alone.
Effects on children
The Convention shall lay down the exercise of parental authority. It determines the place of residence of the child(ren), shall fix the amount of the maintenance, and shall organize the right of access and accommodation.
If pregnant during body separation, the presumption of paternity is excluded because of the lack of cohabitation.
Maintenance of marriage obligations
Other obligations arising out of marriage remain, in particular the duty of fidelity, emergency and support.
As a result, spouses cannot marry or enter into an agreement Civil partnerships: titleContent.
Maintenance payment to spouse
The duty to provide assistance may give rise to the payment of a maintenance to the needy husband. It may be provided for by the legal separation agreement or by a subsequent judgment.
If the consistency of the husband's property debtor This pension may be replaced by the payment of a capital sum.
Can keep the same name
Each spouse retains the use of the other's name, unless the agreement provides otherwise.
Succession
If one of the separated spouses dies, the surviving spouse retains the inheritance rights provided for by law.
However, in the case of legal separation by mutual consent, the agreement may provide for the spouses to waive their respective inheritance rights.
Legal separation ceases if the spouses resume their common life, if they divorce or if one of them dies.
Répondez aux questions successives et les réponses s’afficheront automatiquement
Conversion to divorce
Legal separation automatically ends with divorce through a procedure in conversion from legal separation to divorce.
The request is made by subpoena in court. The lawyer is obligatory.
It may be requested by one of the spouses after 2 years after the judgment of legal separation.
Where legal separation is made by mutual consent, the divorce application must also be made by mutual consent.
In the case of a joint application by the spouses, the conversion of separation into divorce is not subject to the two-year period and may be requested at any time.
Resumption of community life
Between spouses, the separation of property will be maintained unless the couple chooses another matrimonial regime with a notary.
With regard to third parties, in order to have legal value, the resumption of a common life must be established by a notary or declared to the registrar of the town hall on which the family home of the spouses depends.
An entry shall be made in the margin of the marriage and birth certificates of the spouses.
Death
Legal separation ends when one of the spouses dies.
Mutual consent with hearing of the child
If the child requests to be interviewed by the JAF: titleContent, the agreement shall then be subject to its approval. The minor must be informed by his or her parents of his or her right to be heard by the judge.
The request may be made if the spouses agree on the separation and all its effects (division of property, parental authority, duty of care as maintenance or capital). No minimum length of marriage is required.
The spouses do not have to disclose the reasons for the separation.
FYI
separation by mutual consent is prohibited for protected adults (i.e. subject to a guardianship or trusteeship or safeguard of justice).
The spouses must take a common lawyer or each one their own.
Who shall I contact
In order to bring the matter before the judge, the spouses, through their lawyer(s), must file a request separation in court from the family's place of residence.
If the spouses live separately, they have the choice between the following courts:
- Place of residence of the parent with whom the child habitually resides in the case of joint exercise of parental authority
- Place of residence of the parent exercising sole parental authority
- Place of residence of either parent.
The spouses shall submit for the approval of JAF: titleContent a convention regulating all the practical consequences of separation for them and the child. The agreement may provide for the exercise of parental authority, on place of residence of the child(ren), the maintenance, and the right of access and accommodation.
The matrimonial property regime must be wound up, that is to say, the spouses must provide for the division of their common property, a notarial act being compulsory in the presence of immovable property.
The JAF: titleContent shall hear the spouses separately and then together. It ensures their will to separate and their free and informed consent.
If the court finds that the will of each of the spouses is real and that their consent is free and informed, it shall approve the convention governing the consequences of separation. The agreement shall then be approved.
The JAF: titleContent may refuse approval of the agreement if it finds that the agreement does not sufficiently safeguard the interests of the child or of one of the spouses.
In that case, it shall postpone its decision, by order, until a new agreement is presented in a period of 6 months.
The approval of the new agreement depends on the conditions or guarantees specified in the decree.
The JAF: titleContent may approve interim measures on which the spouses have agreed. This may include information concerning the separate residence of the spouses, the fixing of maintenance, the attribution of the enjoyment of the dwelling to one of the spouses. These measures must be in the best interests of the child and the spouses. They shall apply until separation has been pronounced.
If the judge refuses a second time to approve the convention, or if there is no new convention, the request for separation lapses, that is to say the whole procedure has to be repeated.
The cost varies depending on the fees of the lawyer or lawyers selected and emoluments from the notary.
If a spouse is under-resourced, he or she may apply for legal aid.
Effective Date
Legal separation shall take effect on the date of the agreement regulating all the consequences of the separation, unless the spouses have chosen another date.
The Convention is enforceable to third parties from the day on which the civil registration formalities were completed.
Cessation of the duty of cohabitation
The spouses remain married, but are allowed to no longer live together.
Separation of property
Separation of bodies always leads to the separation of goods.
Spouses married under a community system will have to liquidate the matrimonial regime, unlike spouses married under the separation of property regime. The liquidation is carried out before a notary.
The spouses' regime will be that of the separation of property. For example, property purchased by one of the spouses during the legal separation will be treated as a clean property and not as belonging to the two spouses.
A spouse who takes credit or debt during legal separation must pay it alone.
Effects on children
It is the terms and conditions mentioned in the convention that must apply.
If pregnant during body separation, the presumption of paternity is excluded because of the lack of cohabitation.
Maintenance of marriage obligations
Other obligations arising out of marriage remain, in particular the duty of fidelity, emergency and support.
As a result, spouses cannot marry or enter into an agreement Civil partnerships: titleContent.
Maintenance payment to spouse
The duty to provide assistance may give rise to the payment of a maintenance to the needy husband. It must be provided for by the legal separation agreement or by a subsequent judgment.
If the consistency of the husband's property debtor This pension can be replaced by a capital pension.
Ability to keep the same username
The spouse who uses the other's surname may retain it, unless the agreement provides otherwise.
Succession
If one of the separated spouses dies, the surviving spouse retains his or her statutory rights to inheritance.
However, in the case of legal separation by mutual consent, the agreement may provide for the spouses to waive their respective inheritance rights.
Separation ceases if the spouses resume their common life, if they divorce or if one of them dies.
Répondez aux questions successives et les réponses s’afficheront automatiquement
Conversion to divorce
Legal separation automatically ends in the case of an application for conversion from separation to divorce.
The divorce application is made by request (for purposes of conversion to divorce by mutual consent) in court. It must be accompanied by an agreement on the consequences of divorce. The lawyer is obligatory.
Who shall I contact
It may be requested by one of the spouses after 2 years after the judgment of legal separation. The divorce will be pronounced. The cause of separation becomes the cause of divorce.
If the legal separation was made by mutual consent, the divorce application must be a request by mutual consent.
In the case of a joint application by the spouses, the conversion of separation into divorce is not subject to the two-year period and may be requested at any time.
The judge may not hear the spouses and may review the agreement with the lawyers.
In the absence of any difficulty, the judge validates the agreement and pronounces the divorce.
In case of difficulty, the judge may request that a new application be made with an amended agreement. The spouses have 1 month to submit the new application. If they do not do so, the judge issues an order in which he or she does not validate the agreement. In the event of a dispute, the call is possible in 15 days from the date of delivery of the decision.
Resumption of community life
Between spouses, the separation of property will be maintained unless the couple chooses another matrimonial regime before a notary.
With regard to third parties, in order to have legal value, the resumption of a common life must be established by a notary or declared to the registrar of the town hall on which the family home of the spouses depends.
An entry shall be made in the margin of the marriage certificate of the spouses and their birth certificates.
Death
Legal separation ends when one of the spouses dies.
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Protected major: general provisions
Case and procedure of legal separation
Consequences of Body Separation
End of Body Separation
Jurisdiction of the court
Transformation of a divorce into legal separation
Divorce on conversion of body separation
Divorce by mutual consent by a private deed countersigned by lawyers, filed in the minutes of a notary
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