Compensatory Allowance in Divorce Proceedings

Extract

[...] This assessment by the judges must make it possible to strike a fair balance between the objective pursued and the protection of the debtor's assets on which the compensatory allowance does not impose a special and exorbitant burden( Cass. 1re civ nov n° 21-12.128). In this way, certain magistrates were able to take into account the concubinage of one of the spouses with a person having significant income ( Cass. 1re civ nov n° 13-25.414 - Cass. 1re civ juin 2020, n° 19-11.128). [...]

[...] 1re civ Oct n° 21-25.436), the compensatory allowance paid to a previous spouse (Cass. civ February 2007, n° 06- « the contribution to the maintenance and education of children to determine the debtor spouse's resourcesCass.1re civ July 2022 21-12.460 and 21-12.354). The Court of Cassation has notably clarified in this judgment that in the absence of a request from the former spouse, judges are not required to deduct from the resources of that person the contribution to the maintenance and education of the children. [...]

[...] In addition, the debtor will have to pay interest from the day when the divorce became irrevocable (Cass. Civ February 2018, n°17-14.184). 6 The question of the abusive minimization of his income by one spouse: The government was questioned by a parliamentarian in 2024 on the means to fight against the abusive minimization of his income by one spouse in order to avoid paying a compensatory allowance.7 The Minister of Justice replied that 'the assessmentin concreto of the situation operated by the judge allows to ensure that the interests of the spouses are preserved" and that "if the debtor spouse organizes his insolvency fraudulently in order to avoid the judge's decision condemning him to pay a compensatory allowance, he may be subject to criminal proceedings and expose himself to a sentence that can go up to three years in prison and 45,000 ? [...]

[...] The contentious issue related to the non-payment of the compensatory allowance: How to ensure the payment of the compensatory allowance? In contentious divorces: article 277 decides that 'Regardless of the legal or judicial mortgage, the judge may require the debtor spouse to establish a pledge, provide a guarantor or subscribe a contract guaranteeing the payment of the annuity or capital.' The judges have a discretion to assess the need to request the establishment of a pledge or to require the debtor spouse to provide a guarantor.Cass. [...]

[...] - Certain criteria are difficult to predict, such as predictable retirement rights. But also the consideration of the concubinage of one of the spouses with a person having significant income, since it is difficult to know in advance how long the relationship will last and if the favorable economic situation of the spouse will be permanent. 3 - Professionals can rely on scales to evaluate the amount of compensatory allowance. However, none of them are official or mandatory, and each one can lead to different results. [...]