Is it possible to request an advance on the liquidation of the community during divorce proceedings?
Initiating and conducting divorce proceedings often require considerable financial effort (relocation, new accommodation, various expenses, etc.).
Once these initial steps have been completed, the next step is to liquidate the existing community of property between the parties.
When the parties have joint property to divide, it is quite possible for the proceedings to drag on. Each party could in fact maintain its claims, and demand that a judgement be passed to settle the matter definitively. At present, the time taken to obtain such a judgment or final decision is long, and can jeopardize the financial situation of one of the parties.
Years during which it can be difficult to support oneself or rebuild one’s life.
It therefore becomes necessary to have an advance on the liquidation of the existing community property between the spouses.
On the other hand, one of the spouses may refuse to grant an advance, for various reasons, legitimate or otherwise.
The courts therefore need to have a clear understanding of the issue.
Which court should the claim be submitted to?
In a recent decision[1], the Court of Appeal upheld the jurisdiction of the Business Judge to hear such a request.
Before the introduction of the law of June 27, 2018 instituting the Family Affairs Judge, reforming divorce and parental authority, the President of the District Court sitting in summary proceedings as a judge on the merits was competent to hear the claim for an advance on the liquidation of the existing community of property between the spouses on the basis of article 815-11 of the Civil Code.
In one case handled by our firm, a claim for an advance on the liquidation of the community property had been lodged by a husband against his wife.
The husband referred the case to the President of the Tribunal d’Arrondissement (District Court) sitting in summary proceedings as the judge on the merits.
We defended the wife, arguing that jurisdiction should now be given to the Family Court.
The main argument was that the Juge aux affaires familiales had been instituted to enable the same magistrate to follow, as far as possible, a family through the divorce proceedings during all the ordeals that might arise, such as fixing the children’s residence, obtaining visiting and accommodation rights, fixing a maintenance contribution for the children, and of course the liquidation of existing property between the parties.
The Court of Appeal agreed with our pleadings and upheld the jurisdiction of the Family Court to hear this type of claim.
This decision was taken in the interests of the family and in line with the spirit of the 2018 law.
Under what conditions
Article 815-11 of the Civil Code allows any undivided co-owner to obtain a capital advance on “the rights of the undivided co-owner in the partition to be made” when two conditions are met: there are sufficient funds available and the sum requested is less than the rights of the undivided co-owner in the partition to be made[1].
It must therefore be concluded that a capital advance can only be made in the presence of an undivided co-owner, and a fortiori in the case of indivision.
According to this article, it would therefore only be possible to request an advance on the liquidation of the community when the spouses have joint property to share.
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Me Perrine LAURICELLA – Attorney at law