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Focus on the protection ordinance Articles 515-9 et seq. Of the Civil Code

Articles 515-9 civil code

The law of July 9, 2010, relating to violence made specifically to women victims of violence within couples and the impact of the latter on children, established the Protection Ordinance, an emergency procedure aimed at the protection of victims. before or after filing a complaint, whether the perpetrator has been convicted or not.

Article 515-9 of the Civil Code now provides that: "When violence within the couple or by a former spouse, a former partner bound by a civil solidarity pact or a former partner endanger the person who is the victim, one or more children, the family court judge can urgently issue a protection order to the latter. "

This order is issued by the Judge, seized by the person in danger, if necessary assisted or with the agreement of this one, by the public prosecutor.

Upon receipt of the request for an order, the Judge summons the two parties for a hearing assisted, if necessary, by a lawyer.

If the judge considers, in view of the elements produced, that there are serious reasons to consider as probable the commission of the acts of alleged violence and the danger to which the victim or one or more children are exposed, he issues the protection order. .

Article 515-11 of the Civil Code details the scope of the competence of the Family Judge with regard to the measures which may be ordered:

  • Prohibition for the defendant to receive or meet certain people, including the victim, as well as to enter into contact with them.
  • Prohibit the defendant from owning or carrying a weapon.
  • Decide on the separate residence by specifying which of the two will continue to reside in the conjugal accommodation (except in special circumstances, its enjoyment is attributed to the victim spouse).
  • Decide on the modalities of exercise of parental authority and, where applicable, on the contribution to the expenses of the marriage.
  • Authorize the plaintiff to conceal his domicile or residence.

Today, since the law of August 4, 2014, it should be noted that the aforementioned measures are taken for a maximum period of six months from the notification of the order and can be extended beyond if, during this period , a request has been filed with the family court judge (divorce, legal separation or request relating to parental authority).

Given the limited duration of these measures and the need to subsequently file a request for final measures, it appears more appropriate, in the case of a married couple, to give priority to the issuance of a petition for divorce accompanied by a summons for conciliation on a fixed day.

This procedure allows, if it is granted by the Family Affairs Judge, the accelerated fixing of the conciliation hearing.

To be successful, the applicant must be able to justify of an emergency.

The family court judge will then be able to set all the provisional measures intended to apply until the divorce is pronounced and thus settle the entire marital and family situation, in accordance with article 255 of the Civil Code.

The measures fixed under the terms of the non-conciliation order lapse if neither of the spouses has assigned the other within a period of thirty months from their pronouncement.

In the event of a summons issued within this period, these measures are extended by right until the final pronouncement of the divorce.

Example of case law

That, if the medical certificates produced do not make it possible to establish the existence of physical violence that Madame says she suffered (only the medical certificate drawn up on November 26, 2014 by the Doctor indicating an "old-looking echymosis at the level of left temple without cutaneous wound ”), it appears from the medical certificates of October 30, 2014 drawn up by the emergency room doctor of the hospital center and of November 21, 2014 by the Doctor that Madame presents“ an emotional shock ”and“ an alteration of the general condition characterized by asthenia and a sad mood ”having led to an eight-day work stoppage…

That, if each party produces contrary certificates concerning their educational qualities and tending to discredit the other parent, it nevertheless emerges from the report drawn up on December 11, 2014 by the psychologist, that the child is anxious and insecure;

Heard only by the psychologist, she will say the following to him: "dad does dangerous things, slaps my mum there, I heard, I saw a little bit too", "my mum he insults her" , "He says she has a pig education, he has a problem with my daddy's pig." He also says that they smoke like pigs, that's insults ”,“ he's more violent, he slaps my mom very hard, on vacation he ruined everything a bit. We were at the marine lake, he slapped the face when we were at the hotel ”;

That, questioned about her feelings, she will say that she is "a little bit unhappy because of my dad";

That the psychologist concludes her report by specifying that “the elements collected… make it possible to awaken the parents' vigilance concerning their daughter. The child is anxious, insecure and a feeling of loyalty already appears in his questions and his speech ... Such a context, if it persists, does not seem favorable to his development. Louise is afraid for her mother, which activates anxieties of separation and loss ”;

That these elements establish that there are serious reasons to consider as probable the commission of the facts of alleged psychological violence and the danger to which Madame and her daughter are exposed;

Whereas these facts endanger Madame, as well as her daughter;

That the urgency is characterized in that Madame and Monsieur always live together;

That it follows that Madame is admissible and justified in requesting that a protection order be taken in her favor in application of the aforementioned provisions of article 515-9 of the civil code.

Protection order of the TGI de Blois of December 23, 2014

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