REAL, Avocats à la Cour
The guarantees deriving from the institution of a family court judge: between simplification, rapidity and reduction of procedural costs for the family’s best interests
The family law reform operated by the Law of 27 June 2018 assigned a number of competences, that may be embraced under the concept of « family law », to one single judge, namely the family court judge, hereafter referred to as the « judge ».
These competences, initially dispersed between different jurisdictions including the « juge de paix », a « chambre civile du tribunal d’arrondissement », the president of the « tribunal d’arrondissement », the juvenile judge or the guardianship judge are nowadays incorporated in the Article 1007-1 of the new Code of Civil procedure.
The judge has herewith jurisdiction for all the procedures relating to marriage, including for example disputes about the spouses’ respective rights and duties. He has also jurisdiction for all the divorce related procedures and among other things for both provisional measures (former « référé-divorce ») and the ruling on divorce’s merits. Another significant litigation matter operated under the judge concerns parental authority, namely the disputes regarding the execution of the terms and conditions of parental authority, regardless of whether the parents are married, divorced, separated or simply living together. All the powers that were usually exercised by the guardianship judge with regards to minors are equally assigned to the judge. The same observation applies to claims requesting the extension of a person’s eviction notice following a case of domestic violence, matter which was formerly assigned to the president of the « Tribunal d’arrondissement ».
The purpose of gathering all the family law matters in the hands of a unique family court judge is to allow the said judge to follow a family, as far as possible, through all the procedures that may occur. This gathering allows the judge to have a global vision of the family and it finally puts an end to the scattering of attributions between the different jurisdictions.
The new procedure applying to the judge was driven by the willingness to simplify the actual procedures while upholding each parties’ rights. As such, the innovation by which provisional measures (former « référé-divorce ») as well as the ruling on divorce’s merits now lies within the competences of one unique judge allows for greater efficiency and reactivity but it also facilitates all the steps of the procedures for the litigants.
The legislator chose the mean of a « requête » to petition the court rather than the said classical procedure in civil matters consisting of an « assignation » requiring the bailiff to intervene. A « requête » will have the non-negligible advantage of preventing the parties to engage expenses, considering that the « service du greffe » will deal with the parties’ convening for all the family law matters.
The legislator also took into account the fact that the litigation in family law issues intrinsically concerns complicated family situations and that it is in the family’s best interests, and particularly for children, to have quick judicial responses to the arising disputes. The setting of affairs before the judge is therefore confined in restricted time frames.
Another purpose of the new law is to strengthen the judge’s conciliatory role. The parties are indeed as of now obliged to personally appear in front of the judge. The procedure before the family court judge will mainly be oral and will take place in the presence of the parties and their attorneys where appropriate. Having a general mission of conciliation of the parties, the judge will have to consult each of the parties in order to get an overall view of the dispute opposing them and to collect their different point of views.
The legislative provisions as modified by the institution of a family court judge will solve faster and more efficiently the litigation in family law matters and therefore allow the said litigation to be alleviated and the parent-child relationships to be preserved subsequently to the couple’s separation.
The law of 27 June 2018 reforming family law: Introduction of an accelerated procedure concerning divorce for irremediable break down of relationships
The law of June 27th, 2018, instituting a family court judge, reforming divorce and parental authority, entering into force on November 1st, 2018, considerably amends the legal basis for divorce applications.
The former legal grounds on which a divorce application could be based on, namely divorce on the grounds of fault (former Article 229 of the Civil Code), divorce for separation of more than three years (former Article 230 of the Civil Code) and divorce for separation of more than five years in case of illness (former Article 231 of the Civil Code) are indeed abolished.
In accordance with the new Article 229 of the Civil Code, divorce may now only be pronounced in two cases: either by mutual consent or for irremediable break down of relationships.
The purpose of the new legal basis for divorce applications as established by the law of June 27th, 2018, is to remedy the shortcomings detected in former litigation disputes regarding not only the particularly lengthy divorce proceedings but also the abuses arising from the difficulties, possibly even the impossibility of divorcing in the absence of evidence of a fault or the spouse’s consent to divorce (A).
The reform of divorces by mutual consent as operated by the law of June 27th 2018 reveals in contrast a loss of efficiency in terms of rapidity to put an end to the parties’ union and nowadays seems to morph into a procedural complexity (B).
A – The merits of a divorce for irremediable break down of relationships : celerity and simplification of divorce proceedings
The reform provides that a divorce for irremediable break down of relationships can be claimed, via an attorney, either unilaterally by one of the spouses or by both spouses jointly if an agreement is found regarding the principle of divorce.
After filing a unilateral or joint divorce petition, the parties are subsequently summoned by the clerk within 15 days following the filing of the said petition, the notice of appearance being of 8 days. The court hearing is then fixed within one month from the date of expiry of the aforementioned appearance notice.
In case of agreement between the parties on the principle of divorce, it is relevant to underline that the divorce can be pronounced in a substantially faster time lapse since it can be pronounced as of the fixing of the first court hearing.
Elseways if no agreement can be found between the parties on the entirety of the divorce’s consequences or on eventual accessory measures, the family court judge can rule separately and later on that subject, without affecting his decision to grant the divorce or not.
Another non-negligible element, which comes out of the new legal basis for divorce, is henceforth the possibility, on the same basis as the Portuguese or French law, to be able to divorce in the absence of a mutual will of the spouses and more specifically without having to prove the evidence of a fault of the absent spouse or the unwillingness of the spouse to divorce.
If remarkable steps forward can be noticed regarding the divorce proceedings for irremediable break down of relationships, the same observation can unfortunately not be made in terms of non-litigated divorces (B).
B – The reformed divorce by mutual consent: towards a complex and decelerated procedure ?
The new procedure of divorce by mutual consent requires to refer the matter to the Court through a joint divorce petition filed with the clerk by attaching the divorce settlement agreement drafted by either an attorney or a notary, the legally required documents as well as the establishment of an inventory of the spouses’ joint property subject to property division.
Following the filing of a divorce petition, the clerk will also convene the parties in a time lapse of 15 days. It should however be pointed out that the legislator omitted to mention the time limit to be provided for the fixation of the court hearing, so that the parties are not in any way assured to benefit from a short delay for the fixation of their first court hearing before the family court judge.
Furthermore, once the family court judge will have personally convened the parties in order for them to confirm their willingness to divorce, the judge will carry out an analysis of the content of the divorce settlement. He shall also review that none of the clauses contained in the said settlement are contrary to the children’s best interest and that the settlement does not disproportionally restrict the spouses’ interests.
If the judge considers the divorce settlement to be jeopardising the children or the spouses’ interests, the parties will be given 6 weeks time to modify the clause(s) and present a new divorce settlement. New debates regarding the said settlement will be fixed at a later court hearing posteriorly to the aforementioned six weeks period.
If a new divorce settlement is not provided to the Court in the given deadline, the application filed for a divorce by mutual consent will be declared null and void by judgement.
Adversely, if the new divorce settlement is provided to the court on time, the judge may either declare the modified settlement to be appropriate and therefore grant the divorce or conversely rule the settlement to be inadequate so as to issue a committal for trial in front of three judges, the said panel having then the opportunity to approve the settlement or render a judgement rejecting the divorce to be granted.
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It must therefore be concluded that unlike the institution of a new legal basis for divorce for irremediable breach of relationships, the legislator fixed new procedural rules in terms of divorce by mutual consent which tend to complicate the regime as it existed until now, with the risk, in fine, to result to a divorce that will be granted belatedly as if it had been based on the irremediable breach of relationships.
The downturn and the future practical applications of the new procedural rules set by the reform will demonstrate whether the concerns regarding slowness and complexity are justified.
In any case, recourse to divorce for irremediable breach of relationships can be favourably welcomed by both spouses who both agree on the principle of divorce and are willing to see their divorce be expeditiously granted.
The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status
The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.
The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.
The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).
- The principe of joint parental authority established as a general rule
The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.
The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.
The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.
The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.
In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.
The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.
In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.
- Parental authority in case of parental separation
The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.
A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.
The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.
If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.
Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.
Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.
The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.
Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.
Another innovation of the Law of 27 June 2018: Accreditation ; a pledge of security for the parties in order for their agreements to be executed
A large number of parents address the consequences of their separation in an agreement in which they will beforehand and by mutual agreement have determined the different terms and conditions regarding notably the exercise of parental authority, the designation of domicile as well as the rights of access and accommodation of the common child(ren) or even the common child(ren) support.
To that extent, the family law reform operated by the law of 27 June 2018 has introduced a considerable innovation with regards to non-contentious procedures since the accreditation of an agreement concluded between unmarried parties as well as the accreditation of divorce settlements are henceforth expressly provided in the law.
Regarding unmarried parties, the new Article 377 of the Civil Code specifies that the parents can refer to the Court for the accreditation of their agreement in which they organise the exercise of parental authority, designate the domicile and the child’s residence, the rights of access and accommodation as well as the contribution to the child’s maintenance and education.
To do so, the parents assisted where necessary by their attorney, will have to file a joint petition in accreditation of their agreement. The clerk will summon the parties within 15 days from the filing of the petition and the court hearing regarding the accreditation of the agreement will be fixed within one month. The State’s Council Office shall have the possibility to attend the hearing and can at the hearing and if appropriate conclude verbally or through previous written submissions.
Such innovation will have the considerable advantage of obtaining a legally enforceable decision, thus opening the possibility for a potential future conviction of the parent who does not properly execute the measures of the agreement (for example through an attachment made by a court bailiff in order to get payment of a child support).
Furthermore, divorce settlements from married couples will hereafter also be accredited by the Court. It will thus form an integral part of the judgement of divorce. This will facilitate the recognition as well as the execution, not only within the country but also in foreign countries, of decisions granting a divorce, but also of all the measures contained in the parties’ divorce settlement as accredited by the Court and notably those regarding parental authority and rights of access and accommodation of the children.
The divorce settlement will be regarded as a « judgment » within the meaning of international or European Regulations such as the Council Regulation (EC) n°2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n°1347/2000.
However, with the previous legislation about divorce by mutual consent, the Court did simply confirm the elements specified in the parties’ divorce settlement. As a consequence, should one of the parties not respect the settlement, then the other party necessarily had to initiate a new proceeding (for example before the « Justice de Paix » in order to get a judgment condemning the party to the payment of a child support) in order to get an enforceable title in that matter.
This new provision introducing the accreditation by the Court of agreements that parents or spouses have reached together shall be highly welcomed, since such a possibility denotes a security for the parties in order for their agreements to be immediately executed in the event of non-compliance of the measures it contains.