Called the Matrimonial Affairs Judge until January 8, 1993, the Family Affairs Judge (JAF) has been centralizing all family litigation since 2009.
He is a judge of the Tribunal de Grande Instance appointed by the president of the tribunal to which the functions of JAF will be delegated. He is not appointed by decree (like the examining magistrate, the children's judge, etc.). He is assisted by a clerk.
The JAF sits in the council chamber, that is to say it receives litigants in its office, or a small room in the court. If the case requires it, he can also sit in collegiate (he will be assisted by 2 other JAF).
JAF hearings are not public.
The functions of the JAF
The JAF is all at the same time:
- A pre-trial judge. He ensures the progress of the cases before the hearing and the respect of the adversarial principle (communication of documents between the parties….)
- A conciliating judge. Conciliation is compulsory in all cases of divorce. It is necessary to clarify that it is not a question of convincing the spouses to stay together or to give up the procedure. This means that he should always try to reconcile the parties in the hearing to find common ground on post-divorce measures.
- A trial judge. Seized to settle a dispute, it is only in the event of persistent disagreement that it will make a decision that will be binding on both parties.
- A summary judge. He can be called upon to take all urgent measures during, after and outside marriage.
JAF's areas of expertise
Once entered, it can:
- Fix the charges and contributions of the marriage and take all urgent measures within the framework of the marriage
- Divorces and legal separations
- Ensure the best interests of the children, outside divorce (for PACS and unmarried couples) and after divorce
- Review compensatory benefits
- Assign parental authority and the delegation of parental authority over a child
- Decide on parentage
- Decide on the adoption
- Rule on appeals for change of first and last name for filiations
The functions relating to the choice of the first name are devolved to the registrar and in the event of a dispute, brought before the JAF.
- Decide on all food actions between descendants and ascendants (parents / children) and collaterals
- To rule on all food actions taken by hospitals, general councils, retirement homes, social medical centers
- Establish the liquidation of matrimonial regimes (judicial approval of the change in matrimonial regime, fate of joint ownership between cohabiting partners and civil union partners, etc.)
- Decide on the guardianship of minors (emancipation, etc.)
To help him make his decision, the JAF can order ex officio, if it considers insufficiently informed about the family situation, a social survey or a medical-psychological examination.
He can also, in the event of intra-family difficulties (lack of communication, etc.), offer a family mediation.
And in order to preserve family ties, the JAF can provide that meetings between parents and children can take place in publicized places, that is to say in a neutral establishment, for one or more hours a week.
The territorial competence of the JAF
In principle, the competent judge is that of the place of residence on the day of the request or, in divorce matters, on the day of the presentation of the initial request.
But it's not that simple, like this:
- If the parents live together: This will be the JAF of the family's place of residence
- If the parents live separately and jointly exercise parental authority: It will be the JAF of the place of residence of the parent with whom the minor children usually reside
- If a parent exercises sole parental authority: It will be the JAF of the place of residence of the parent who exercises sole parental authority;
- In the event of a joint request, the competent JAF is, according to the choice of the parties, that of the place where one or the other resides.
- If the dispute concerns alimony, the contribution to the maintenance and education of the child, the contribution to the expenses of the marriage, or the compensatory allowance, the competent JAF may be that of the place where the creditor spouse resides. or the parent who primarily takes care of the children, even adults
In all other cases, only the JAF of the place where the defendant resides will be competent.
The different methods of referral to the JAF
It can be entered by:
- Summons in the form of summary proceedings (or summary proceedings if urgent)
When filing the request, the registry will notify the parties of the hearing date. Referral in the form of summary proceedings allows a date to be obtained very quickly without having to demonstrate the urgency of the situation which is not a condition of admissibility.
- Request or joint request
The request is joint when it is made by both parties (divorce by mutual consent, etc.).
The applicant can file his request directly at the registry of the competent JAF who will inform him of the date of the summons orally, against signature. If the request is made by mail, the registry will send the summons to the applicant by ordinary letter.
The registry summons the defendant (the one who is not at the origin of the request) within fifteen days by registered letter with acknowledgment of receipt and accompanied by a simple letter to which will be annexed the request of the plaintiff and the summons.
Note: Referral to the JAF by simple declaration to the registry is no longer possible. If the address of the defendant is not known, it will be necessary to proceed by way of summons (by bailiff).
The lawyer is compulsory for divorces, reception rights requested by grandparents, procedures for change of first name. These are written procedures (filing of conclusions). Its intervention is optional in other areas.
With the exception of matters relating to divorces, delegation of parental authority, change of first name, etc. All decisions of the JAF are legally enforceable on a provisional basis.
The decisions of the JAF are judgments served by bailiffs (on the initiative of one of the parties) or, if the decision so provides, notified by the registry to the parties.
The appeal period is 1 months from receipt of the decision.
The guiding principles of the decisions of the JAF
The law gives the JAF elements of appreciation enabling it to determine the best interests of the child.
According to the law of March 4, 2002, he must first seek the existence of an agreement between the parents. A decision taken on the consent of the parents will be better implemented and therefore less subject to challenge in the future.
According to article 372-2-11 of the civil code, it must also take into account previous practices, feelings expressed by the child if he is auditioned, the aptitude of each of the parents to assume their duties and respect the rights of the other, the result of expertise and social surveys carried out in order to enlighten it.
The parties may produce evidence and all supporting documents which are discussed contradictorily.
No document obtained by fraud or violence may be paid into the proceedings.
However, a letter taken from the letterbox without the spouse's knowledge and text messages read in secret, are not considered to have been obtained by violence or by fraud (Cass, civ. 1st June 17, 2009, n ° 07- 21.796). This evidence can therefore be validly entered in the proceedings.
Subsequent modifications to the decisions of the JAF
The decisions of the JAF are subject to change in the future.
To consider a new referral to the JAF it will be necessary to provide proof that a significant change has occurred in the financial, personal, professional or family situation making the old decision null and void or impossible to carry out. Otherwise, the request will be rejected.