French Family Law

Sources of French Family Law

French family law (droit de la famille) is codified in Book I of the Civil Code (Code civil), which originally entered into force on 21 March 1804 under the title Des Personnes. The 1804 provisions, deeply influenced by Napoleonic patriarchal conceptions of the family, have been almost entirely replaced by successive reforms. The modern law is found principally in Articles 144-515 of the Civil Code, supplemented by specialised statutes and by the jurisprudence of the Court of Cassation (Cour de cassation).

The Constitutional Council (Conseil constitutionnel) reviews family legislation for compatibility with constitutional principles, particularly the respect for private and family life derived from Article 2 of the Declaration of the Rights of Man and of the Citizen of 1789 and the Preamble of the Constitution of 1946. The European Convention on Human Rights, especially Article 8 on the right to respect for private and family life, exerts a powerful influence through the direct application of the Convention in French courts and through the judgments of the European Court of Human Rights.

Marriage

The requirements for a valid marriage are set out in Articles 144-171 of the Civil Code. Both parties must have attained the age of eighteen (Article 144), though the public prosecutor (procureur de la République) may grant a dispensation for serious reasons (Article 145). Article 146 requires the free and informed consent of both parties; a marriage entered into without free consent is voidable. Duress, fraud, or a mistake about the person or about essential qualities of the person (such as a serious concealed disease) renders the marriage voidable at the instance of the deceived spouse.

The prohibited degrees of relationship under Articles 161-164 preclude marriage between ascendants and descendants in the direct line, between siblings, and between uncle and niece or aunt and nephew. These prohibitions may be waived by the President of the Republic for certain relationships created by marriage (alliance) under exceptional circumstances. Bigamy is prohibited, though France does not criminalise bigamy as severely as some jurisdictions.

The formal requirements for marriage are strict and grounded in the principle of laïcité (secularism). Under Article 165, the marriage must be celebrated by the civil registrar (officier de l’état civil) of the commune where one of the parties resides or where one of the parties’ parents resides. The ceremony is public, conducted in the town hall (mairie), before two witnesses. Prior publication (publication des bans) by posting a notice at the town hall must occur at least ten days before the ceremony. Religious ceremonies may take place only after the civil ceremony; a religious marriage conducted without prior civil marriage is void, and the officiating minister risks criminal penalties under Article 433-21 of the Penal Code.

The law of 17 May 2013, known as the loi Taubira (Law No. 2013-404), opened marriage to same-sex couples by amending Article 143 of the Civil Code to state simply that marriage may be contracted by two persons of the same or different sexes. The Constitutional Council, in its Decision No. 2013-669 DC of 17 May 2013, upheld the law against constitutional challenges, holding that the legislature had not exceeded its competence and that the reform did not violate the requirement to protect marriage and the family. The reform also granted same-sex spouses the full range of parental rights, including adoption, though assisted reproduction for same-sex couples was not addressed until the 2021 bioethics law.

Legal Rights and Duties of Spouses

Article 212 of the Civil Code sets out the mutual duties of spouses: fidelity (fidélité), cohabitation (cohabitation), and assistance (secours). The duty of fidelity has been progressively attenuated in the divorce context — a single act of adultery no longer constitutes, by itself, a per se ground for fault-based divorce absent injury to the marital relationship. The duty of cohabitation requires spouses to live together, though the courts recognise exceptions for professional or health reasons.

Article 214 provides that spouses contribute to the expenses of the household (charges du ménage) in proportion to their respective means, a duty that applies regardless of the matrimonial property regime. Article 215 requires that spouses choose the family home together and that neither may dispose of the rights over the home without the consent of the other. Articles 213 and 216 establish equal parental authority during the marriage and the freedom of each spouse to exercise a profession without the other’s consent.

Divorce

French law, since the comprehensive reform of 1975 (Law No. 75-617), provides four grounds for divorce under Articles 229-246 of the Civil Code. The divorce by mutual consent (divorce par consentement mutuel) under Article 229-1 is the most common ground, accounting for over half of all divorces. The spouses must agree on the divorce and on all its consequences, including the liquidation of property and arrangements for children. The reform of 2016 (Law No. 2016-1547) introduced the simplified divorce by mutual consent without judicial oversight: where there are no minor children and both spouses are represented by lawyers, the divorce may be effected by a notarial act or by a private deed countersigned by lawyers, dispensed with the former requirement of judicial approval.

The divorce for acceptance of the breakdown of the marriage (divorce pour acceptation de la rupture) under Article 233 arises where both spouses accept the principle of the divorce but do not necessarily agree on its consequences. This does not require acceptance of the factual allegations; it merely requires acceptance that the marital bond has been broken. The divorce for definitive alteration of the marital bond (divorce pour altération définitive du lien conjugal) under Article 237 exists a separation of at least one year.

The fault-based divorce (divorce pour faute) under Article 242 requires proof of a serious or repeated violation of the duties and obligations of marriage that renders the continuation of the marital relationship intolerable. Adultery, domestic violence, abandonment, and grave insult are established examples. Where the respondent establishes that the petitioner also committed faults, the court may find both spouses at fault and grant the divorce without assigning responsibility.

Financial Consequences

The prestation compensatoire under Articles 270-280-1 of the Civil Code is a lump sum payment designed to compensate for the disparity that the dissolution of the marriage creates in the respective living conditions of the former spouses. The amount is fixed by reference to the length of the marriage, the age and health of the spouses, their professional qualifications and employment prospects, the time already devoted or to be devoted to child care, their existing and foreseeable assets and income, and their respective property rights. The court determines the amount and may order payment by instalments over a period not exceeding eight years. Unlike the periodic maintenance payments common in common law systems, the prestation compensatoire is intended to be a definitive capital payment, reflecting the French preference for the clean break.

The liquidation of the community property (liquidation du régime matrimonial) accompanies the divorce. The default matrimonial property regime since 1965 is the community of acquisitions (communauté réduite aux acquêts), under which property acquired during the marriage is held in common and property owned at marriage or received by gift or inheritance is separate. The spouses may contract out of the default regime by marriage contract (contrat de mariage) in favour of separation of property (séparation de biens) or universal community (communauté universelle).

Children

Parental authority (autorité parentale) under Articles 371-387 of the Civil Code is defined as the set of rights and duties directed towards the protection, security, and upbringing of the child. Both parents exercise parental authority jointly during the marriage. Upon divorce or separation, joint parental authority continues unless the court determines that the child’s interests require the attribution of exclusive authority to one parent. The family court judge (juge aux affaires familiales — JAF) determines the child’s residence, the right of access and accommodation, and the contribution to the maintenance and education of the child (contribution à l’entretien et l’éducation de l’enfant).

The contribution to child support is assessed in proportion to each parent’s resources and the child’s needs. The reference tables (barème indicatif) published by the Ministry of Justice provide indicative amounts based on the non-custodial parent’s income and the number of children, though the judge retains discretion to depart from them.

The 2022 reform of family law (Law No. 2022-219) continued the evolution toward simplified procedures, expanding the scope of divorces by mutual consent without judicial oversight and strengthening the mechanisms for the recovery of child support. The reform also introduced provisions for the recognition of parentage for children born through medically assisted reproduction (PMA) for female couples and single women, following the 2021 bioethics law (Law No. 2021-1017) which extended assisted reproduction to these groups.