When a relationship between two married people comes to an end, the outcome does not always involve divorce proceedings. In some cases, the spouses request a separation and carry out a legal separation by mutual consent. More rare today, the approach is nevertheless useful in certain situations and allows spouses to organize their separation, according to their matrimonial regime. Anne Marion de Cayeux, lawyer at the Paris Bar and specialist in family law, individuals and their assets, enlightens us on the ins and outs of legal separation.
What is the point of requesting a legal separation for a couple separated amicably?
Proceeding with a request for legal separation has consequences on the home. The approach, which is examined during an orientation hearing and provisional measures (AOMP), allows spouses to be able to organize a separate life and no longer be obliged to have a common life within the framework of marriage. . “The legal separation agreement allows you to record the separation and no longer be at fault with regard to the marriageto set everyone’s contributions and expenses for the children, then to organize their lives“, explains Anne Marion de Cayeux. Either the spouses agree to proceed with the separation, or the conditions are not satisfactory and a family affairs judge (JAF) intervenes. He will rule on the provisional measures aimed at the spouses and children and then pronounce a judgment of separation. The separation is then recorded under private signature.
How is it different from getting divorced?
The legal separation agreement does not put an end to the duties linked to marriage, unlike the divorce procedure. So, the spouses remain subject to the duty of respect, help, fidelity and assistance. As the marriage is not dissolved, it is also impossible for the two former partners to remarry or enter into a civil partnership, unlike a divorce which completely closes the union. It is also possible for spouses to retain the use of the married name in the context of a legal separation, if they wish.
What are the steps and consequences of the act of legal separation with a lawyer?
When making a request for legal separation, if the spouses’ matrimonial regime was the community regime, they must switch to the regime of separation of property and contact a lawyer. “They can stay in a system where they both remain co-owners of a property”, however, indicates Anne Marion de Cayeux. Apart from the separation of property, certain details must be clarified with the spouses in the context of legal separation, in particular the question of contribution to marriage expenses, the allocation of housing and the living environment of children, such as alimony, visiting rights or parental authority. A step which does not occur in the context of de facto separation.
What is the point of the de facto separation process?
The differences between a legal separation agreement and a de facto separation is that the latter is not regulated by law. It therefore has no legal value and implies that the spouses simply no longer live together, like a classic separation. But this does not remove the duties and obligations arising from the marriage, and does not lead to the separation of property, unless the spouses have a matrimonial regime in this sense, such as a marriage contract.
This option can be chosen by spouses to avoid getting involved in different procedures or because they feel they need a period of reflection. “Some spouses don’t necessarily want to do a legal act, pay lawyers and other things. Sometimes spouses separate, fumble and don’t know what they want either.“, explains Anne Marion de Cayeux. Or for religious or social reasons. However, the effects of this type of separation involve complications: if two people remain separated for several years, their accounts must be scrutinized and reworked from the moment of their separation, and the task can be difficult if no framework had been established.