The duty of help, a financial stake in a divorce

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“The spouses owe each other respect, fidelity, help, assistance.

»Far from being empty promises, the duties induced by article 212 of the Civil Code, and systematically listed during a marriage, commit the spouses throughout their union and can have a significant financial impact in the event of a marriage. separation…

A high but temporary pension

“The duty of help and assistance can take the form of a monthly alimony paid to the spouse in need.

This is an interim measure requested by one of the parties and decided by the family affairs judge, ”explains Valérie Avena, editor-in-chief of the review

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And to specify that this financial support "is intended to apply throughout the procedure and until the divorce is pronounced".

To apply for this financial allowance, the spouse must therefore justify a situation of necessity, while the other must have sufficient resources to support him.

But what does this notion of “need” cover?

A ministerial response of June 16, 2020 recalls the principle in this area by indicating that this alimony aims "to ensure a certain balance between the lifestyle of each of the spouses during the duration of the procedure".

Going well beyond the simple subsistence, this sum must indeed take into account "the multiplication of the fixed charges incompressible and the expenses induced by the separation".

In other words, the goal is to maintain a standard of living similar to that of marriage.

Although there are no statistics on the matter, judges may thus be led to award fairly high amounts.

An envelope at the time of divorce

Nonetheless, the alimony ceases obligatorily when the divorce is pronounced.

In order to compensate for the subsequent financial imbalances caused by the break-up, the former spouses must then have previously requested the granting of a compensatory allowance.

It is expected in 19% of cases, according to the Ministry of Justice (2013 figures).

As a general rule, it consists of a capital envelope, paid in one go, the annuity remaining very exceptional (one in ten).

To determine its amount, family court judges use several calculation methods based on many factors such as the length of the marriage, the age and state of health of the spouses, their professional situations or their assets.

But Valérie Avena warns: “Even if the compensatory allowance must take into account the financial disparity resulting from the divorce, case law reminds us that it is not a question of equalizing fortunes.

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A matter of calculations

Therefore, the award of a high alimony during the procedure does not absolutely guarantee obtaining a substantial envelope at the time of the divorce.

The two decisions can be separated.

And the editor-in-chief cites a case judged in May 2020, in which a compensatory allowance of 3,500 euros was granted in view of the "short duration of the joint life" (three years out of seven years of marriage), while a monthly pension of 650 euros had been imposed under the duty of help which, compared to a procedure of several months, represents a much larger sum.

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Change of procedure

At present, alimony must be requested at the stage of the petition, in other words of the legal act initiating the divorce proceedings.

The judge thus fixes the provisional measures in his non-conciliation order.

And it is only then that the document initiating the proceedings itself takes place within a period of three months.

Except that this two-step procedure will change.

While the divorce reform was to enter into force on September 1, 2020, the health crisis prompted the State to postpone it to January 1, 2021. On that date, the initial request will disappear and, with it, the phase of conciliation of the spouses .

But the provisional measures can always be presented in the single act of referral and until the end of the debates.

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