Legal separation is a strange status which puts an end to the duty of cohabitation inherent in marriage without dissolving the matrimonial bond.
This is the big difference with divorce: The spouses no longer live together, and exercise custody and visitation rights over their children while remaining married.
Therefore, each keeps the use of the other spouse and remains subject to all the other duties of marriage which are loyalty, fidelity and the duty of help.
Second consequence of the legal separation: It involves the separation of property between the spouses and moreover, if one of the spouses dies, the other will keep all his rights in the succession.
Legal separation must be clearly distinguished from de facto separation, in which the spouses jointly decide to live separately. This is quite possible because even if the community of life is a duty of marriage imposed by article 215 paragraph 1 of the civil code, according to which " The spouses oblige each other to a community of life. ", Article 108 of the Civil Code moderates this principle by accepting that" The husband and wife can have a separate domicile without infringing the rules relating to the community of life."
What makes the particularity of this hybrid notion, halfway between marriage and divorce, is that it must be pronounced by the JAF .
The initial request follows the same rules and the same procedure as a divorce (Articles 296 and 298 of the Civil Code).
The spouses must be assisted by a lawyer and the request must be filed with the JAF of the place of residence of the spouses.
If a spouse is at the initiative of the separation, such as for divorce, it can be requested for the termination of their cohabitation, for fault or for acceptance on the principle of separation. If the two spouses agree to separate, they can make a joint request. The legal separation will be pronounced by mutual consent.
During the hearing, the judge will note the legal separation and fix alimony to the spouse in need under the duty of help which is a duty of marriage.
The JAF will then render a judgment which will pronounce the legal separation and in which it will determine the fate of the allocation of accommodation, custody and access rights for children...
Namely: If the spouses resume common life, the legal separation will end (article 305 of the civil code). But, it will have value only between the spouses.
As long as the resumption of joint life has not been noted in a notarial deed and then transcribed with the civil status, the judgment of legal separation will be unenforceable against third parties. This means that towards creditors, lessors, the administration… they will always be considered as separated from body, even if the spouses have resumed living together.
In all cases the resumption of common life will not modify the regime of separation of property under which the spouses are placed. If they want to change it, they will have to request it.
In the absence of any reconciliation, legal separation is a transitional period which often leads to a divorce.
How the legal separation relates to the different divorce cases
The legal separation judgment will be automatically converted into a divorce judgment if the separation has continued for 2 years without interruption (article 306 of the civil code).
It will be a divorce by mutual consent if the legal separation was pronounced by mutual consent (article 307 of the civil code).
Parallelism of the forms obliges, articles 1090 and 1132 of the code of civil procedure, the legal separation by mutual consent will be converted into divorce by mutual consent if the request contains, in addition to the judgment of separation, an agreement signed by the spouses and their lawyers. , regulating all the effects of separation.
The articulation of legal separation with a counterclaim
If one spouse requests a legal separation, the other spouse may oppose a counterclaim for divorce.
If one spouse files for divorce, the other spouse may oppose a counterclaim for legal separation.
However, if the main request is a divorce for permanent alteration of the marital bond, in this case article 297 of the civil code provides that the counterclaim can only be a case of divorce and not a legal separation.
In the event of a simultaneous request for legal separation and divorce, the judge must first examine the request for divorce. However, according to article 297-1 of the civil code, if the two requests are based on fault, they will both be taken into account by the judge who will pronounce the divorce for shared wrongs.
In all cases where the conditions for divorce are not met, the judge will pronounce a legal separation.
Observation: But then, you will tell me, what is the point of launching a legal separation procedure to start divorce proceedings after 2 years, when we end up with the same result with the divorce for alteration? final marriage bond?
Well, since divorce is no longer taxed with infamy (as it was until the 70s or even the 80s), and apart from isolated situations (keep the use of the spouse's name, nuns not admitting divorce…) none!
In fact, before the 2004 reform, divorce for alteration of the marital bond could only be envisaged after 6 years, while legal separation could be converted into divorce after “only” 3 years.
By lowering the separation periods for these two institutions to 2 years, the 2004 legislator removed any interest in the legal separation, if not to formalize while gently preparing for the separation of the spouses.