FRANCE Law and Practice Contributed by: Elodie Mulon, Emmanuelle Bonboire-Barthélémy and Louise Astruc Baciotti, Chauveau Mulon & Associés
However, French jurisdictions acknowledge and take foreign trusts into account when address - ing the financial consequences of divorce. Case law is limited. Regarding spousal support obligations, French courts consider trusts in two primary contexts: • spousal maintenance – courts typically assess prior distributions from the trust to determine the spouses’ standard of living; and • compensatory payments – rather than analys - ing the beneficiary spouse’s specific rights under the trust, courts often focus on the total value of the trust’s assets to evaluate whether the divorce creates a financial imbalance jus - tifying compensatory payments (Paris Court of Appeal, 7 July 2015, No 14/08780). In liquidation of matrimonial property, case law addresses two key issues: • community property transfers to a trust – when community property is placed in trust and only one spouse is designated as a ben - eficiary, a claim for reimbursement is created (Paris Court of Appeal, 1 October 2008, No 04/24633); and • determining spouses’ rights in liquidation – French courts generally apply a civil law per - spective, disregarding the specific beneficiary rights under the trust; instead, they treat the trust as conferring direct ownership over its assets (eg, Aix-en-Provence Court of Appeal, 9 November 2016, No 15/02936). 2.4 Spousal Maintenance Spousal maintenance obligations between spouses may result from the payment of ali - mony during the divorce proceedings ( devoir de
secours ) or the establishment of post-divorce spousal support ( prestation compensatoire ). Alimony (Devoir de Secours) During divorce proceedings, the judge may establish alimony for the benefit of one of the spouses (Article 255, 6° of the Civil Code). This alimony persists until the spouses are officially divorced by an irrevocable decision. It aims not only to secure the minimum essential for the recipient spouse but also to maintain a similar standard of living between the spouses. The determination of alimony follows specific cri - teria: it takes into account the recipient spouse’s needs and the marital standard of living, as well as the financial resources and expenses of each spouse. French law does not provide for any specific calculation. The determination of the amount is left to the discretion of the family court judge. Post-Divorce Spousal Support (Prestation Compensatoire) The purpose of spousal support is to offset, as much as possible, the disparity in the spouses’ living conditions resulting from the divorce (Arti - cle 270 of the Civil Code). Spousal support is determined based on the needs of the recipient spouse and the resources of the other, taking into account their situation at the time of divorce and its foreseeable evolution. The judge has several elements to consider in assessing this disparity (Article 271 of the Civil Code): • duration of the marriage; • age and health status of the spouses; • their qualifications and professional situation;
167 CHAMBERS.COM
Powered by FlippingBook