Spousal maintenance under French law

Spousal maintenance during the divorce, pension alimentaire entre époux

Under French law, a spouse has the right during a divorce to ask the other spouse to pay a pension alimentaire, maintenance allowance, to them for the entire duration of the divorce proceedings, as stipulated in Article 255, 6° of the Civil Code:

“The judge may in particular:

…6° Prescribe periodical payments and allowance for costs to be paid by one spouse to the other, designate the spouse or spouses who shall be responsible for the provisional performance of all or part of the obligations…”

This allowance, which is due on account of the legal duty of spouses to support each other, is to be paid for the entire duration of the divorce proceedings until the divorce is granted. If spouses are unable to reach an agreement, a judge will, after careful consideration of the income and living expenses of each spouse, determine the allowance amount and how often it should be paid.

Consequently, you must be able to provide supporting evidence of all your income and expenses (e.g. rent and service charges or operating expenses if you own your home, insurances, medical costs, loan repayments etc).

Let’s take by way of example the case of a legally separated couple, where one spouse moved to a new home on their own or with a third party while the other stayed in the family home with the children.

If the spouse staying in the family home has a low income (e.g. working part-time) or no income at all (unemployed), the judge may decide to assign the family residence to them and order the higher-earning spouse to pay for all the operating expenses of the family home. In this case, the paying spouse will need to pay all the family home’s operating expenses on top of the maintenance allowance.

Once the divorce is final, the legal duty of spouses to support each other no longer applies and maintenance payments will stop. However, the spouse previously in receipt of the allowance may be awarded a compensatory allowance, prestation compensatoire. Compensatory allowance is owed at the end of the divorce proceedings, when a divorce is granted.

Compensatory allowance, prestation compensatoire

Once a divorce is granted, the pension alimentaire is no longer payable. However, the poorer spouse may be entitled to compensation if the divorce results in financial inequality between ex-spouses. To correct this, a compensatory allowance,prestation compensatoire, may be awarded to the spouse made poorer as a result of the divorce.

An application for compensatory allowance must be made during the divorce proceedings and is payable at the end of the divorce, replacing the pension alimentaire which was only in place for the duration of the divorce. Compensatory allowance is a crucial part of the divorce proceedings as its amount – determined by the family-law judge – has a decisive impact on the future financial health of the parties.

In the past, judges were able to take into account any unreasonable behaviour on the part of the paying spouse when determining the amount of compensatory allowance to be paid. However today, in an attempt to reduce conflicts between spouses, any fault or wrongful behaviour on the part of a spouse no longer has any bearing on the calculation of compensatory allowance. Although understandable in principle, this solution is not an easy one for the wronged spouse to accept, especially if they find themselves in a difficult financial situation.

If the spouses are unable to agree on the amount of compensatory allowance to be paid, the Juge aux affaires familiales, family-law judge, will decide for them. The judge will take into account a number of criteria as defined by Law in Article 270 of the Civil Code: “A compensatory benefit must be determined according to the needs of the spouse to whom it is paid and to the means of the other, account being taken of the situation at the time of divorce and of its evolution in the foreseeable future.”

Normally, the spouse petitioning for divorce (the petitioner) specifies the amount of compensatory allowance they are prepared to pay the other spouse. The lawyers of each party then exchange pleadings conclusions together with evidence (income, actual or estimated retirement pensions, savings, expenses…) to justify the amount being offered or requested. This information will be taken into account when analysing the financial disparity.

The judge also considers the causes of this disparity and takes into account the criteria set out in Article 271 of the Civil Code, namely:

the ages and states of health of the spouses;
the duration of the marriage;
the time devoted to educating the children;
their professional qualifications in respect of the employment market;
their respective situations as to retirement pensions;
the assets of the spouses, both in capital and income, after the liquidation of the matrimonial regime/settlements of accounts as between husband and wife.

The family-law Judge also takes into consideration the occupation of the spouses during their marriage. For instance, a couple may have jointly decided that a spouse would stop working or work part-time in order to devote their time to their children.

A few experts have worked out an income scale to help calculate the compensatory allowance (Axel Depondt, Dominique Martin-Saint-Léon, Stéphane David). However, it is worth keeping in mind that there are some judges who disregard these scales. The judge decides on the amount and – unless the spouses come to an agreement – the terms of payment of the allowance.

The judge may decide that the allowance be paid as:

a lump sum,
allocation of property for ownership or of a right of use, dwelling (free use of the furniture and accommodation) or usufruct, temporary or for life,
exceptionally, a life annuity, provided that the beneficiary is unable to support themselves (e.g. old age or health problems).

Should the paying spouse be unable to pay the lump sum in one instalment due to insufficient funds, they will be allowed to spread the payments over a period of up to eight years.

When giving the decision, the family-law Judge determines the amount of the compensatory allowance and how it should be paid. The spouses have the right to appeal against this decision if they find it unsatisfactory.

It is important to bear in mind that once the divorce is granted and the time periods for appeal have expired, the divorce will be final.

This means that the spousal maintenance the pension alimentaire, which was paid during the divorce proceedings, will stop.

However, should a spouse appeal against the amount or methods of payment of the compensatory allowance, the spouse previously in receipt of the pension alimentaire during the divorce proceedings will no longer receive this allowance.

On the other hand, if the appeal is general – i.e. it concerns both the principle of the divorce and its consequences – then the paying spouse will have to carry on paying the pension alimentaire until the divorce is final.

Therefore, whether you are paying or receiving the pension alimentaire on account of the ‘duty of support’, it is paramount that you talk to your lawyer about the consequences of an appeal before making a decision.