The legislative edifice which frames and suppresses violence within the couple took several years before being put in place.
For a long time only certain provisions made it possible to keep the violent husband away:
- Article 212 of the Civil Code imposes respect between spouses, it is for this reason that all forms of verbal or physical violence will constitute a fault in the event of divorce.
- Article 257 of the Civil Code and 1106 of the Code of Civil Procedure allow the JAF to take emergency measures from the initial request and authorize the spouse who is the victim of violence to leave the marital home with his children.
Curious article which, instead of protecting the victim spouse by forcing the spouse to leave the accommodation, left the abused husband no other choice than to flee with his children under his arm. Another difficulty is that this article does not protect cohabiting partners any more than PACS partners.
Still in force, this article 257 of the Civil Code is used today to authorize spouses to live separately.
But there was nothing really effective to protect a spouse, whether the man or the woman, victim of violence.
As part of the divorce reform, the legislator therefore created "the summary violence" in an article 220-1 paragraph 3 of the civil code, which like any text conceived in haste has turned out to be totally ineffective, even counterproductive. The unmarried spouses victims were still not concerned, and therefore not protected and, icing on the cake, its execution required recourse to the public force… In short, it was repealed.
It will be necessary to wait for the law n ° 2010-769 of July 9, 2010 relating to "violence made specifically against women, violence within the couple and the impact of the latter on children", and the decree n ° 2010-1134 of 29 September 2010 relating to "the civil procedure for the protection of victims of violence within the couple" codified in articles 515-9 and following of the civil code so that serious measures can be instituted.
The JAF protection order
The main measure is the creation of an emergency protection order issued by the JAF every time "in view of the elements produced before it and contradictorily debated, that there are serious reasons to consider as probable the commission of acts of violence. alleged and the danger to which the victim is exposed ”.
- The good point: This time we go from spouse to spouse. This means that the text applies not only to all couples, married, civil union or cohabiting, but also to all former spouses who have returned to haunt their "ex".
- The bad points: Only women are protected, but what grieves the jurists remains that these new powers given to the JAF, civil judge, encroach on the criminal and, another major problem, the term "likely violence" supposes that the perpetrator has not been tried and therefore is presumed innocent at the time the order is made.
Well, the legislator is on the right track, but it must once again review its copy.
And this was not lost on the European Court of Human Rights, which in 2013 reminded Member States that it was up to them to guarantee the effectiveness of measures to protect victims.
This will be done with the law n ° 2014-873 of August 4, 2014 for "real equality between women and men" which completes and completes the legislative mechanism initiated with the law of 2010.
This concerns physical and / or psychological violence of any kind, whether exercised in front of children, of a sexual nature, accompanied by insults, threats against the victim or against children, blackmail, harassment ... But also economic , it is the fact of monopolizing all the household finances, of having all the means of payment ...
With the protection order, the validity period of which is reduced from 4 to 6 months, the JAF can take measures:
Of a criminal nature:
- Order the eviction from the home of the perpetrator
- Prohibit the perpetrator from coming into contact with the victim
- Prohibit the perpetrator from carrying a weapon
- Order the weapon to be returned to the registry
- Prohibit the perpetrator from meeting certain people
- Authorize the victim to conceal his address (he may be domiciled with his lawyer or with the public prosecutor, etc.)
- Order the abusive spouse to take an empowerment course
- Provisionally rule on the residence of the children and on the procedures for exercising parental authority.
- Declare the deprivation of parental rights on the basis of article 373-2-11 of the civil code
- Set the right to visit in high-profile places
- Prohibit the exit of a child on the basis of article 373-2-6 of the Civil Code
- Set a contribution to the costs of marriage or material aid within the meaning of article 515-4 of the civil code for civil partnership partners.
Specific provisions protecting the victim spouse
The fate of the couple's housing
Protective measures concern the protection and allocation of housing to the victim spouse, whether the violent spouse is the owner or tenant of the housing. In the latter case, the rental lease can be transferred to the name of the victim spouse with a participation charged to the violent spouse.
When the eviction of the perpetrator of the violence is ordered and he does not leave the home of his own free will, he may be forced to do so after an order to leave the premises issued by a bailiff (article L.411-1 of the code civil enforcement proceedings). Protective provisions in matters of expulsion, such as the winter break ... will not apply and the JEX will be incompetent to grant him time limits.
The device of a "great danger" telephone: the TGD
Victims of violence can benefit from a special mobile phone equipped with a button with a preprogrammed telephone number that only needs to be activated to be in contact with a dedicated call center and which allows them to be geolocated by law enforcement. This, in the event of a threat, will allow the victim to be rescued wherever he is.
This legal system, currently being deployed throughout the country, is set up by the public prosecutor for 6 renewable months for victims who have ceased all cohabitation with the violent spouse.
Victims of foreign nationality
Foreign women benefiting from a protection order will be able to benefit from the automatic renewal of their residence permit.
Article 313-12 of the code on entry and residence of foreigners and the right to asylum provides that in the event of domestic violence committed before the issuance of the first residence permit, the victim will be issued a residence card. temporary.
If the violence occurs during the community of life, articles L.431-2 and L.313-12 of the code of entry and stay of foreigners and the right of asylum, specify that this does not entail withdrawal of the residence permit, nor the refusal to renew this permit.
If the victim is in an irregular situation, article L. 316-3 of the code for the entry and stay of foreigners and the right to asylum provides for the issuance of a temporary residence card bearing the words “private life and family ”without any condition of community of life or even full legalization with the issuance of a 10-year residence card.
Adults threatened with forced marriage may also benefit from a protection order.
All of these measures make it possible to control all violence within the couple, both in terms of prevention, protection and repression.
Applying for a protection order
To obtain a protection order, it is necessary to seize the JAF by way of request or summons. In both cases, it will be necessary to specify to the judge (who is bound by the request) which, among all the legal provisions, are the measures from which it intends to benefit.
The request allows to seize the court which will then summon the defendant (the violent husband).
The request must contain a summary statement of the reasons in support of the request and all documents demonstrating the seriousness and urgency of the situation (medical certificates, handbooks, filing of complaints, etc.).
The secretariat-registry will summon the parties by registered letter with acknowledgment of receipt as well as the civil service of the Public Prosecutor's Office, which must always be informed of the holding of hearings for acts of violence between spouses.
With the summons in the form of summary proceedings (emergency situation), it is up to the lawyer to request a date from the registry office and to have the defendant summoned by a bailiff at least 15 days before the fixed date.
All documents and arguments in fact and in law must be annexed to the order in accordance with the principle of adversarial proceedings.
Article 1136-5 of the procedural code provides for the victim's address to be concealed in all procedural documents. Only the address of his lawyer or the public prosecutor with whom he elects domicile will appear.
The adversarial hearing follows the rules of oral procedure.
The parties will therefore be able to appear without the assistance of a lawyer. However, so much for the victim who might have difficulty defending himself alone (fear of being alone in front of the violent spouse, of exposing his situation, of demonstrating the urgency, etc.); that for the defendant who incurs a criminal sanction with entry in his criminal record, the assistance of a lawyer is strongly recommended to both parties.
The victim can, on request, be heard alone by the judge if she felt fear or apprehension to find herself face to face with her spouse.
The public prosecutor is a party to the proceedings and issues an opinion which will be read at the start of the hearing.
As of the summons, he can collect all the necessary information on the defendant in order to know if there is a history of pending cases. He may also request that a confrontation take place before the hearing.
The JAF office
Article 515-11 of the Civil Code defines the action of the judge by specifying which criteria must be met to issue a protection order:
"The protection order is issued, as soon as possible, by the family court judge, if he considers, in view of the elements produced before him and contradictorily debated, that there are serious reasons to consider as likely the commission of the alleged acts of violence et the danger to which the victim or one or more children are exposed ”.
The plausibility of the alleged facts:
This notion of "likelihood" is hardly compatible with the law which can only be understood in terms of proven, demonstrated, proven facts… and not hypothetical. The difficulty is to run the risk of manipulation, instrumentalization or alteration of the truth. A risk that the legislator has deemed admissible given the urgency and gravity of the situations suffered by victims of domestic violence.
Plausibility means that, if not certain, the facts must be credible. It will be :
The more medical certificates there are, the more plausibility will be demonstrated. Priority should be given to medical certificates drawn up by authorized doctors (UMJ service - medico-judicial unit) indicating total incapacity for work (ITT greater or less than 8 days) which will have more value than those issued by the attending physician. .
The complaints, even withdrawn and the handrails passed to the police station or the gendarmerie.
In principle, the handrails should be subject to a deferred visit by the police to the victim's home.
Certificates from relatives, neighbors, text messages and the list of calls in the event of harassment ...
In a decision of June 2, 2015 (Cass. Crim, June 2, 2015 n ° 14-85.130) the Court of Cassation admitted the testimony of children in matters of violence in the name of the principle of freedom of evidence.
Recall that according to article 205 of the code of civil procedure "the descendants can never be heard on the grievances invoked by the spouses in support of a request for divorce or legal separation".
However, and this is the specificity of domestic violence, it is prosecuted and punished both on the civil and penal level. In this case, the spouses were certainly in divorce proceedings, but the judges considered that in the case of domestic violence, prosecuted in criminal proceedings, nothing could hinder the freedom of proof in accordance with article 427 of the code of criminal procedure, and therefore admitted the testimony of their child.
The danger must be real, present and imminent.
It should not be a simple fear, just as the facts should not be too old, or isolated ... It will be necessary to demonstrate the urgency on the basis of facts that it will be up to the judge to assess.
After hearing all the parties, the JAF will issue its order at the seat (after hearing the parties), or at a very short notice (usually within hours).
The protection order is subject to appeal within 15 days of its notification by a bailiff. The hearing should take place promptly.
The protection order is legally enforceable on a provisional basis and must therefore apply during the appeal proceedings. Only the first president of the Court of Appeal seized in the form of summary proceedings can suspend their effects.
If the defendant is found guilty of acts of violence does not carry out the measures taken against him is liable to the sanctions provided for in article 227-4-2 of the penal code, namely, 2 years imprisonment and 15 euros fine.
Note: According to the latest figures, in 2011, nearly a third of requests were rejected for lack of proof.
The other grounds for refusal are: equivocal evidence - absence of danger, past violence, spouses who have already left the marital home - insufficient evidence on the state of danger - past violence - absence of a current or imminent danger.