REAL, Avocats à la Cour
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.