The divorce petition 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.
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 opposing side. The court also sets a timetable for disclosure and a date for the first hearing (known as the First Appointment).
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.
During the initial stages of the proceedings, it is not obligatory to have legal representation. However, as the proceedings continue, legal representation becomes obligatory.
The most important document required is the Form E. This form provides full financial disclosure and is required by both sides. Supporting documents are also required such as payslips, land valuations, bank statements and pension rights. The purpose is to ensure that both parties (and the court) have full knowledge of the means of the other.
Other documentation which will be produced include a chronology of the main financial events, 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 definitive list of supporting documentation is required.
There are 3 main hearings in financial applications:
1. First Appointment
This hearing is largely for procedural matters. 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. By this point, the court should have all relevant financial disclosure and each side should have made an offer of settlement. The court will hear the parties’ positions and will give his/her view on those positions, with a view to encouraging negotiation.
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 an order. An order as to costs may also be made.
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. Audience de conciliation
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. 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.
In coming to a decision, the Judge will consider a number of different 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.
As in England, the judge will also consider a number of factors as set out in the Civil Code, including the length of the marriage, earning capacity, health of the spouses and retirement plans.
The Matrimonial Causes Act 1973 gives judges the ability to make a number of different financial orders. These include the following:
- Periodical payments (for child or spousal maintenance)
- Lump sum orders
- 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 this 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 extremely rare and is usually in cases where one party is very old and has little chance of finding employment.
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. 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 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.
As outlined above, there are key differences between the English and French systems. It is important, however, to seek specialist legal advice (from French and English lawyers) to provide you with strategic advice based on your own set of circumstances. This will be crucial to ensure that you achieve the best possible outcome and that the inevitable stress that comes with a divorce process is minimised.