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Body Separation
Verified 10 October 2023 - Directorate for Legal and Administrative Information (Prime Minister)
You're married, but you don't want to live together anymore? You can opt for body separation. Unlike divorce, it allows spouses to to remain married, but to reside separately. It may be established by privately signed document or by judgment of the court. We present you with the information you need to know.
What applies to you ?
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Unlike divorce, legal separation allows spouses to to remain married, by being allowed to live apart.
Legal separation is of interest to spouses opposed to the principle of divorce. Either because they do not want to end their marriage permanently, or because one depends on the other, has few resources and/or needs to benefit from the protection offered by marriage.
Warning
a de facto separation is not a legal separation. De facto separation means a unofficial situation in which the spouses no longer live together, but remain married. Legal separation has legal value; it is provided for by law.
Separation of bodies always results in the separation of property.
FYI
the conversion to divorce is not automatic. If you have obtained a legal separation and you no longer want to be married, you have to go through divorce proceedings.
Body separation may be requested only by married persons.
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By the judge
The judicial separation procedure is identical to that of the judicial divorce.
Each spouse must have a lawyer.
Who shall I contact
The Family Court Judge (Jaf: titleContent) of the court of justice has jurisdiction.
The request is made by subpoena by the lawyer of the spouse who requests legal separation (the applicant).
The other spouse (the defendant) shall also be assisted or represented by a lawyer throughout the procedure. The time allowed for defendant to get a lawyer is 15 days.
The summons constitutes the conclusions the applicant spouse, i.e. his or her claims and arguments.
It shall indicate the type of body separation requested:
- For permanent alteration of the conjugal relationship
- For acceptance of the principle of marriage breakdown.
The husband who wishes to request legal separation for fault must not indicate this reason in the summons.
Assignment can contain requests for interim measures, i.e. a temporary organization concerning the children and property of spouses during the procedure.
The application for legal separation must contain the following elements:
- Location, day and time of the Orientation and Interim Measures Hearing (PMOI)
- Proposal for the liquidation of the financial and property interests of the spouses
- Provision of mediation in family matter
- Approval partial or complete agreements between the spouses on the exercise of parental authority and the consequences of separation
The request for body separation is examined during a orientation hearing and interim measures (AOMP).
The judge may:
- Declare that the spouses agree to a participatory procedure
- Either refer the matter to the reconditioning providing a timetable with dates for the progress of the dossier
- Refer the matter to a hearing (hearing at which legal separation is pleaded)
This audience (AOMP) allows you to take interim measures concerning spouses (e.g. allocation of accommodation) and their children (e.g. maintenance).
After the orientation hearing, the case enters a phase of the procedure called reconditioning.
During this period, lawyers must present their requests and their arguments (called means) in a named entry conclusions, accompanied by supporting documents.
The spouses must exchange all their documents: that is the principle of adversarial. All such documents and submissions shall also be communicated electronically, by counsel, at graft of the court.
A judge, called pretrial judge, shall have the task of ensuring that the procedure is carried out properly.
At status hearings, that judge shall verify that the exchange of the form of order sought and the documents between spouses takes place within the time limits set by the Council.
Status hearings are held regularly until the case is ready for trial. They are taking place virtually : the spouses do not have to appear in court.
Once the file is complete, the pretrial judge close trade and fix the date of hearing of the case. This hearing is called hearing.
Spouses may not provide new forms of order or documents after the date of the termination of the pre-trial stage.
On the day of the hearing, the spouses must be represented by their lawyer.
Lawyers can plead or simply file their case.
At the end of the hearing, the judge gives the date of deliberate, i.e. the date on which the judgment on legal separation is delivered.
Thelawyers must be given to each of the spouses a certified copy of the judgment of legal separation.
The Family Court Judge pronounces this legal separation specifying the legal basis (for permanent alteration of the conjugal relationship, for fault, or separation accepted).
The judge shall also rule on all applications submitted by the spouses (residence ,child support, ... etc).
By mutual consent
The lawyer is obligatory for legal separation by mutual consent.
Each spouse must choose his or her lawyer.
Who shall I contact
The lawyers will write the draft convention of body separation.
In particular, the agreement shall include the following information:
- Conditions exercise of parental authority
- Mention that the minor was informed by his parents of his right to be heard by the judge
- Liquidation statement of the matrimonial property regime
Each lawyer shall send the draft agreement by registered letter with acknowledgement of receipt to the spouse whom he or she is assisting.
The spouses have a reflection period of 15 days.
You have to wait until the end of this period to sign the convention.
The Convention is signed by the spouses and their lawyer in 3 copies.
The spouses shall each keep an original of the agreement together with its supporting documents. On the 3rde original is for the notary.
In the 7 days who follow the signature, one of the lawyers must send the 3e copy of the agreement to a notary.
The notary checks the presence of the mandatory indications in the agreement and whether the reflection period of 15 days has been respected.
The notary classifies the agreement to preserve it and avoid its loss or destruction. It is said that it places the convention among the minutes.
The deposit of the agreement with the notary allows the agreement to be given certain date and enforceability. That is to say, the Convention is now applicable.
FYI
If the spouses have a common child, who is of an age to understand, they must inform him of his right to be heard by the judge. In this case, the legal separation convention shall be approved, i.e. validated by the judge.
The spouse against whom an application for legal separation is made may form a counterclaim in divorce.
The spouse against whom a divorce application is made may file a counterclaim for legal separation.
A spouse who files a divorce application may replace it with a legal separation procedure, even on appeal. However, the opposite is not possible.
If one of the spouses applies for legal separation and the other for divorce, the JAF first considers the divorce application. If the conditions are met, divorce is granted. If not, the judge shall examine the application for legal separation.
When the 2 claims (one for divorce, the other for legal separation) are based on the fault, the Jaf shall examine the applications at the same time. If he accepts them, he pronounces the divorce to the shared wrongs of the spouses.
FYI
if it has run out 2 years after the judgment of legal separation, divorce can be requested.
Lawyer's fees
The cost varies depending on the lawyer's fees chosen.
If any of you are under-resourced, you can apply for legal aid.
Notary's fees
Of notary's fee may be dependent on the spouses.
Legal separation entailing the separation of property, if the spouses were married under a community, on matrimonial regime must be liquidated in order to share the assets (real estate, bank accounts, debts, credit...).
If a notary drafts the deed of division (when there is one or more immovable property), he is entitled to emoluments proportional. These emoluments are calculated on the value of the shared property after deduction of any debts.
Body separation takes effect between spouses the day the judgment has become res judicata or from the date of the deposit of the agreement with the notary if the spouses are amicably separated.
The effective date of the legal separation in respect of the goods shall be the date of the application for legal separation. At the request of one of the spouses, that date may be fixed by the judge at the date on which the cohabitation ceased.
The legal separation agreement or judgment is enforceable third parties, as regards the spouses' property, from the day on which the formalities for civil registration were completed
Cessation of the duty of cohabitation
The spouses remain married, but they are allowed to no longer live together.
Separation of property
Separation of bodies always leads to the separation of goods.
The spouses must liquidate their matrimonial regime if they were married under a community scheme,
This liquidation is carried out before a notary, if they have real estate.
FYI
if they are married under the separation of propertyHowever, spouses do not have to liquidate their matrimonial property regime.
Once separated from their bodies, the spouses are subject to the separation of property regime.
In this matrimonial regime, property purchased by one person during legal separation is personal property. If one of the spouses takes out a credit or has a debt, he must pay it alone.
Effects on children
The Jaf: titleContent decision on the exercise of parental authority. It determines the place of residence of children. It sets the amount of the maintenance, and shall organize the right of access and accommodation.
If pregnant during body separation, the presumption of paternity is excluded because of the lack of cohabitation.
Maintenance of marriage obligations
Other obligations arising out of marriage remain, in particular the duty of fidelity, emergency and support.
Therefore, you cannot get married or enter into a contract Civil partnerships: titleContent with another person.
Maintenance payment to spouse
The duty to provide assistance still exists and may give rise to the payment of a maintenance to the needy husband. It may be granted by the judgment pronouncing legal separation or by a subsequent judgment.
If the consistency of the husband's property debtor This pension may be replaced by the payment of a capital sum.
Ability to keep the same username
The spouse who uses the other person's last name may keep it. However, if one of you requests it, Jaf can prohibit it.
Taxes
You no longer have a common tax.
Legal separation ceases if the spouses resume their common life, if they divorce or if one of them dies.
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Conversion to divorce
Legal separation ends in the case of an application for conversion from legal separation to divorce.
The application for conversion to divorce is made by subpoena in court. The lawyer is obligatory.
Who shall I contact
One of the spouses can ask for it after 2 years after the judgment of legal separation. The divorce will be pronounced. The cause of separation becomes the cause of divorce.
If the spouses make a joint application, the conversion of separation into divorce is not subject to the two-year period and may be requested at any time.
Resumption of community life
The spouses must wanting to live together again.
They remain subject to the separation of property regime, unless they choose another matrimonial regime before a notary.
To be able to enforceable against third parties, the resumption of the common life must be ascertained by a notary or declared to a registrar. This declaration may be made in any town hall.
An entry shall be made in the margin of the marriage and birth certificates.
Death
Legal separation ends when one of the spouses dies.
Who can help me?
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Telephone administrative information - Allo Public Service
For more information on this topic, you can contact Allô Service Public.
Attention: the service does not have access to users' personal files and cannot therefore provide information on their status.
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The informants who answer you are from the Department of Justice.
- Lawyer
Protected major: general provisions
Case and procedure of legal separation
Consequences of Body Separation
End of Body Separation
Jurisdiction of the court
Transformation of a divorce into legal separation
Divorce on conversion of body separation
Divorce by mutual consent by a private deed countersigned by lawyers, filed in the minutes of a notary
FAQ
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