Divorce in France:
Financial and tax implications
By Sarah Bright Thomas of Bright Avocats
consequences of a divorce judged in France can become
apparent both during the divorce procedure proper, and
again when the marital regime is “liquidated” and the
assets divided. Before reaching this stage, a certain
number of questions should be considered:
Can two non-French nationals divorce in France?
Yes, if both parties have their main place of residence
in France, or if the place of residence of the children
Will French law apply to a divorce between
Basically, yes. A French judge can apply a foreign law
when rendering a decision. In practice however this
rarely happens because the parties would need to
convince the French judge of the contents of that
foreign law. Most French judges will feel more
comfortable working with French law.
There are basically four types of divorce procedure in
France, one hostile, two amicable and one for a
- The hostile
procedure (“divorce pour faute”) involves a lengthy,
often bitter battle, to demonstrate that the other
party is responsible for the breakdown in the
simplest, fastest divorce is the divorce par
consentement mutuel whereby the parties agree on
everything (custody of the children, contact with
the other parent, asset split, etc.). Before
submitting a petition to the judge, the parties will
have asked a notary to draft a document showing the
agreed asset split or état liquidatif. (Note – The
notary’s participation is only compulsory if the
assets comprise real estate, if not the parties can
draft the asset split themselves.) The judge will
then simply order the divorce and rubber-stamp the
asset split as submitted to him/her by the parties.
If the judge considers that the asset split is
unfair, he/she may refuse to approve the document –
but this rarely happens in practice.
- The divorce
accepté is put in place when the parties agree that
a divorce is inevitable, but have not reached
agreement on the on the finances of the divorce, ie
the prestation compensatoire, and anything relating
to the children custody and pensions). The judge
will therefore make these decisions for them.
- A divorce
procedure can now also be initiated if the couple
has lived apart for two years (before 2005, the
separation period was six years).
Except for the
divorce par consentement mutuel, the procedure is a
- Stage one:
The judge will order the divorce, determine who has
custody of the children and what financial support
should be paid for the children and for the
- Stage two:
The notary will then proceed with the division of
The party who does not have custody of the children will
be ordered to pay financial support for the children
even if their income is less than their former spouse’s
income known as contribution à l’éducation et à
l’entretien des enfants. The judge assesses the amount
due by calculating the needs and expenses of both
The “impoverished” spouse also has the right to ask for
additional financial support for their personal benefit.
The judge will be asked to determine whether the divorce
will create a disparity in the financial situation of
The stereotype example is that of the successful
businessman whose wife has stayed at home to look after
the children. After the divorce, the businessman will
still earn a more than adequate income and can look
forward to retirement on a satisfactory pension
(probably from private sources). His wife, will, of
course be destitute and so will ask the judge to award
her financial support or prestation compensatoire.
There is no hard and fast rule for calculating the
amount of this financial support. Some criteria are laid
down in the Civil Code, e.g. duration of marriage, age
of parties, respective income of parties, whether one
party stayed at home to look after the children, etc.
Some financial guidelines have also been published, but
decisions do vary between the courts.
Some clients have told me “I want half of my spouse’s
income”, but in my experience, a French judge is more
likely to award between one third and one quarter of the
wealthier party’s income and/or pensions for marriages
of long duration (more than 20 years).
The Civil Code states that the financial support should
be paid as a lump sum.
In a recent case I have dealt with, the spouse was
awarded a lump sum of €200 000. Both parties were
nearing retirement age at the time of the divorce, the
wife had given up work to bring the children up – and
the wealthier party had an income of approximately
€4,000 net per month. The marriage had lasted 30 years.
When calculating the prestation compensatoire the judge
does take into account jointly held assets. When
introducing a divorce petition, it is required by law
that lawyer present the judge with an estimate of what
their client will get in the split of assets procedure
post-divorce. Indeed, this future sums to be had will be
taken into account by the judge when calculating the
It is also possible to pay the prestation compensatoire
in kind. A husband who is ordered to pay his wife €200
000 by means of financial support may reach agreement
with his wife that he will relinquish his €200 000 share
in their €400 000 house. Although this would enable the
wife to remain in the ‘family home’, it could leave her
capital-rich, but income-poor.
It is not the French judge’s function to split assets –
this is done by the notary after the divorce. Obviously
there is little difficulty in splitting jointly held
assets (for example, a house held en indivision will be
split 50/50 unless the original purchase deed indicates
a different percentage holding).
It should be noted that the notary does not have
judicial power. He/she can suggest the way the assets
should be split, but if the parties do not reach
agreement then the case will return to Court and only a
judge can impose the division of assets.
The assets should be split in accordance with the
matrimonial regime of the parties. However, this is
easier said than done.
The marital regime normally corresponds to the regime
applicable in the first country of residence after the
marriage (unless the couple were obviously only living
there on a short term basis), i.e. a couple who married
in England and immediately moved to France to take up
permanent residence will be considered to be married
under the French “community” regime communauté légale
unless they entered into a prenuptial contract.
This regime states that anything purchased after the
marriage will be considered a jointly owned asset,
whereas anything purchased before will be the property
of the sole purchaser. The exception to this rule is
donations and legacies which will remain the sole
property of the beneficiary even if they are received
during the marriage.
This joint ownership rule applies even if only one
spouse works and so all the assets (movables and
property) have been bought from one salary only. Under
French law these assets will be considered jointly owned
and shared accordingly.
However, compensation may be claimed if, for example,
one party sold a home purchased prior to the marriage
and invested that money in the family home purchased
after the marriage, i.e. if the personal contribution
came to 30 % of the family home, that party would be
entitled to ask the “community” to reimburse him/her 30
% of the sale value of the property on divorce.
The situation becomes more complicated if the parties
consider that a foreign marital regime applies (e.g. for
people who married and lived in the UK prior to moving
to France). In theory the assets should be shared
according to English law, which provides for equity to
To date, I have not met a French notary who has split
assets after a divorce in accordance with a foreign law.
Although this scenario is not impossible, it would
involve demonstrating to the notary the contents of
English law on asset sharing and ensuring that he/she
has a good understanding of English (if the parties
requested the application of English law).
In my experience, the French notary will proceed with
the asset split in accordance with French law. And as
long as both parties are reasonably satisfied, the
question of the applicable law will not arise.
Counselling In France would like to thank Sarah Bright
Thomas, Avocat Associé Partner of Bright Avocats for
allowing us to reproduce this article.
16 Place Saint Georges