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Desertion for non-payment of child or spousal maintenance
Legal penalties for spousal or child maintenance desertion
Desertion when a spouse left the family home against the wishes of the other with no good reason
Legal and financial consequences of marriage desertion
PacisLexis Family Law
Marriage desertion and family abandonment
In France, the word ‘desertion’ involves two distinct things with different legal consequences and penalties.
- Desertion means that one spouse left the family home against the wishes of the other with no good reason and can be served as ground for a fault-divorce. It’s called “abandon du domicile conjugal” as “ desertion” in English.
- Desertion also refers to missed maintenance payments and is considered as a criminal offence. It’s called “abandon de famille” as desertion in English.
Family abandonment marriage desertion
Desertion for non-payment of child or spousal maintenance
In France, what is desertion for missed maintenance payments?
3 conditions must be met for desertion:
- A court order stating that a spousal or child maintenance must be paid.
- Payments have stopped.
- The debtor has the funds available to pay but refuses to do so.
How to prove missed maintenance payments?
You should have a court order stating that a spousal or child maintenance must be paid.
This order can be:
- A court statement
- A judgment summons
- A divorce order or a ‘séparation de corps’ order
- A notary statement
- A charging order from an official French government service qualified as the recipient.
The debtor paid directly the child maintenance to the child(ren) instead of the recipient. Is it a breach?
Yes!
Child maintenance should be paid to the recipient.
For example, your ex-husband directly paid the maintenance to your child(ren) even if they are over 18 years old and not to you (the recipient).
When is there desertion?
The debtor stops paying for at least 2 months.
The debtor has stopped paying for 2 months but paid the overdue amount later. Is it a breach?
Yes!
The debtor can’t afford to pay maintenance. Is it a breach?
No!
If the breach is due because of any material change in their financial or other circumstances such as illness, unemployment, accident…and the debtor proves it then there is no breach.
Family abandonment marriage desertion
Legal penalties for spousal or child maintenance desertion
Which judge to seize?
It will depend on your goal.
if you intend to get a legal penalty against the debtor for missed maintenance payments, you should reach out to the criminal judge where the debtor lives.
If your goal is to enforce arrears that are over, you need the family law judge permission.
In some cases, you can also seize both.
How to seize the criminal judge?
The recipient can report it to the police or gendarmerie. Investigation will start when filing a report and the public prosecutor is in charge of pursuing charges against the debtor or not.
If the decision is to proceed, the criminal judge is appointed.
If the debtor is already under prosecution, you can issue a police report if there is non-compliance and join the proceedings as a civil party or directly become a civil part during the hearing and be entitled to damages.
The recipient can also opt for a faster process by requested the issue of a bailiff’s warrant for the outstanding amount. In this process, the court will issue an order claiming a provision.
Going through a bailiff’s warrant process is also very useful to get evidence of the breach.
Can a debtor face criminal sanctions?
Yes!
Failing to pay maintenance can lead to criminal sanctions, such as €15,000 fine and 2-year imprisonment.
A debtor can also face sanctions if they forget to mention a change in their postal address.
How missing maintenance payments other countries deal with?
Dealing with missing maintenance payments or child support payments varies from country to country, as each jurisdiction has its own legal systems and procedures. However, there are some common approaches that many countries take to address the issue of missing maintenance payments:
Legal Action:
- Civil Courts: The custodial parent or the one entitled to receive maintenance can take legal action through civil courts to enforce the payment. This may involve court orders and judgments.
Family Courts: Family or domestic relations courts often handle matters related to maintenance or child support. They may issue orders and enforce compliance.
Government Agencies:
- Many countries have government agencies or departments responsible for enforcing child support. These agencies may have the authority to collect and distribute payments.
Income Withholding:
- In some jurisdictions, income withholding orders can be issued, requiring the employer of the paying parent to deduct the maintenance amount directly from their wages.
Inter-Governmental Agreements:
- Some countries have agreements with other nations to facilitate the enforcement of maintenance orders across borders.
Suspension of Licenses:
- Some jurisdictions allow the suspension of various licenses (e.g., driver’s licenses, professional licenses) for individuals who are in arrears on maintenance payments.
Credit Reporting:
- In certain countries, non-payment of maintenance can impact the delinquent parent’s credit score, affecting their ability to secure loans or credit.
Criminal Sanctions:
- In extreme cases, failure to pay maintenance can lead to criminal sanctions, such as fines or imprisonment, depending on the laws of the jurisdiction.
It’s important to consult the specific laws and regulations of the country in question, as they can vary significantly. Additionally, many countries have international agreements to assist with the enforcement of maintenance orders across borders.
Family abandonment marriage desertion
Desertion when a spouse left the family home against the wishes of the other with no good reason
What is that type of desertion in France?
Desertion in France is defined as one person in the marriage deserting the other for no good reason.
Desertion does not apply for cohabiting and living together couples as a ground.
When is there desertion?
There was no just cause for the respondent to leave and no discussion between the spouses.
For example, you’re married and have 3 children. You are pretty good with your other half and never talked about separation. One night, you realise that your other half just left, taking all their belongings. No text messages or post-it notes whatsoever.
This situation typically refers as a desertion.
If you want to leave the house and to avoid desertion, we strongly advise you to send several recorded letters to your partner to warn them about the situation and you are leaving the marital home.
Please note that in the presence of domestic abuse, leaving your spouse without warning is not considered as desertion.
Can I leave the marital home with my children if we are not in great danger?
If you want to leave the marital home with your children and it’s not an emergency situation, we strongly recommend:
- To write to your partner
- To urgently seek legal advice by calling one of our family law lawyers
- To agree on children’s custody and parental rights.
By following these 3 advice if you want to leave the marital home you won’t be charged of kidnapping or being accused of preventing your partner from having contact with their children.
Your ex-partner can stop you from seeing your child(ren) only with the support of a court.
We both agree on once of us leaving the marital home. Can we draft a separation agreement?
Yes!
If you both agree on this matter, we advise you to draft and sign an agreement called ‘pacte de separation amiable’, a deed of separation or separation agreement in English.
However, the court can disagree with this agreement because it’s not legally binding under French family law.
Indeed, you leave the marital home following the agreement. The agreement is in good place and you still both want a mutual consent divorce.
However the relationship with your partner goes downhill and a mutual consent divorce is not possible anymore. Following lawyer advice, your partner reports you left the marital home and asks a statement from a bailiff. Thus your partner could engage in a fault-divorce proceedings. You will have to prove that there is no breach.
That is why we again strongly advise you to seek for a family law lawyer or a notary for your agreement to be legally binding.
I am working abroad and I don’t leave with my partner. Is it desertion?
No!
Spouses can have different marital home.
When is there desertion in the UK and in the US?
“Desertion” is a term used in family law to refer to the abandonment of a spouse or family without just cause and with the intention of ending the relationship. The legal definitions and requirements for desertion can vary between the UK and the US. It’s important to note that laws can change, and legal interpretations may differ, so it’s advisable to consult with a legal professional for the most accurate and up-to-date information. Here are some general insights:
– United Kingdom (UK):
In the UK, desertion is a ground for divorce under the Matrimonial Causes Act 1973. To prove desertion, certain conditions must generally be met:
- Unjustified Absence: The spouse must have left without justification or reasonable cause.
- Intention to End the Relationship: The departure must indicate an intention to end the marital relationship.
- Two-Year Period: The desertion must have persisted for a continuous period of at least two years immediately preceding the presentation of the divorce petition.
– United States (US):
In the US, divorce laws are primarily governed by state laws, and the terminology and requirements can vary between states. Many states have moved away from fault-based grounds for divorce, such as desertion, in favour of “no-fault” divorce, where neither party needs to prove wrongdoing.
However, even in no-fault states, there may be residency requirements and waiting periods before a divorce can be granted. In some cases, if a spouse has been absent for a certain period without contact, it might be a factor considered in divorce proceedings, but it may not be the sole basis for divorce.
It’s crucial to consult with a lawyer familiar with the family law statutes in the specific state (if in the US) or jurisdiction (if in the UK) to understand the legal requirements for divorce, including any considerations related to desertion. Legal advice can help navigate the complexities and variations in divorce laws.
Family abandonment marriage desertion
Legal and financial consequences of marriage desertion
How to prove marriage desertion?
3 ways to prove marriage desertion in France:
- a police or gendarmerie report: please note that the report must be combined with other proves.
- Statements: If there are witnesses who can testify to the spouse’s absence or the breakdown of the marriage, their statements may be valuable. Follow this link to find witnesses statements: https://www.service-public.fr/simulateur/calcul/11527.
- Throughout a bailiff report: a bailiff report is legally binding and can be compared to a Court decision.
Who gets the marital home during the divorce proceedings?
It depends!
If you brutally left the marital home without any raisons, the court may take desertion into account when deciding on property division or attribution.
Tenancy: I left the marital home, am I entitled to pay the rent?
Yes!
You have to pay the rent unless there is domestic abuse or physical and psychological pressures from your partner.
Tenancy: I left the marital home can I remove my name from the tenancy agreement?
Yes!
You will have to send a recorded letter to the landlord or the tenancy agency.
Home owners: I left the marital home, shall I still pay for the loan?
Yes!
You have to pay for the loan even if you left the marital home. The court can petition your partner to pay an occupation rent.
However, you will have to request it to the Court. Same way, the court can petition the deserter to monthly pay the loan.
Home owners: my partner left the marital home and I’m a sole owner. Can I sell it?
No!
A marital home is considered as marital property so you can’t sell it without your partner’s agreement.
Tax: my partner left the marital home, is there any implications on taxes?
In France married couples are not taxed independently of each other so divorce has an impact on your income tax position.
Legal consequences of marriage desertion in the UK and in the US
United Kingdom (UK):
- Grounds for Divorce: Desertion can be considered as a ground for divorce in the UK, allowing the deserted spouse to file for divorce based on the other spouse’s abandonment.
- Financial Settlements: In divorce proceedings, the court may consider the circumstances of the desertion when determining financial settlements, including the division of assets, spousal maintenance, and child support.
- Child Custody: Desertion may also be a factor in child custody decisions, with the court considering the abandoning spouse’s commitment to the family.
- Property Rights: The deserted spouse may have rights to the marital property, and the court may take desertion into account when deciding on property division.
United States (US):
- Grounds for Divorce: In many states, the legal system has shifted toward “no-fault” divorce, meaning that a spouse doesn’t have to prove the desertion to obtain a divorce. However, the circumstances surrounding desertion may still be considered in divorce proceedings.
- Assets division: Desertion may be a factor when the court is deciding how to divide marital property and assets. It could impact the court’s judgment on issues such as maintenance and property division.
- Child Custody and maintenance: Desertion may influence child custody decisions and the determination of child maintenance obligations.
- Spousal maintenance: The circumstances of desertion can be considered when determining whether spousal maintenance should be awarded and in what amount.
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PacisLexis Family Law
You want to learn more about family abandonment or marriage desertion?
Dans un contexte familial tendu, la présence d’un avocat est essentielle.
Votre avocat en droit pénal de la famille favorisera le dialogue dans la mesure du possible. Lors d’un divorce, vos intérêts patrimoniaux seront préservés au moment de partager le patrimoine et de solliciter, éventuellement, une prestation compensatoire.
En tant que victime de violence conjugale vous pouvez bénéficier du logement familial et votre avocat sera là pour s’en assurer.
Contact us to achieve the best result for you and your family.
PacisLexis Family Law
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