The phenomenon

Civil law, Family law

Estimated reading time (in minutes)

1. The phenomenon of domestic violence is a universal reality. However, its extent is still poorly understood. In France, as everywhere else, neither education, nor money, nor social background can protect a person from violence within the couple. Most of the time, the two main factors of fragility that increase the frequency and seriousness of this violence, mainly against women, are desocialization and insufficient financial autonomy .

2. But because this violence takes place behind closed doors in the family home, a large majority of this behavior is not brought to the attention of the courts. Yet 156 women died in 2008, or one woman every two and a half days.

 

However, the victims of violence exerted by the one who shares their life do not file a complaint. They vacillate between the fear of reprisals and the illusion of love felt for the person who nevertheless strikes them. In addition, there is the difficulty not only of finding an emergency response but also of solving problems related to housing, childcare and the regularity of stay for people of foreign nationality.
This behavior in the couple has an impact on the health of the women and children who are victims or spectators. Their physical consequences are easily identifiable, but their psychological consequences are more serious, especially since the violent person’s objective is not to inflict injuries but rather to reify his victim.

3. It is for this reason that combating such violence must be considered as a public health issue, indeed as an issue for society as a whole, to which the law cannot remain alien.
Faced with such an observation, the fight against violence against women was declared a major national cause for 2010 by the Prime Minister and November 25 has become a day of awareness of this scourge.
In such a context, it became urgent to create a coherent civil system.
Thus, after having started the process with the law of May 26, 2004 relating to divorce, which established a duty of respect within couples, France completed the protection system by adopting the law of July 9, 2010 relating to violence specifically women, violence within couples and its impact on children .
Inspired by the Spanish example, the legal measures adopted are based on the protection order provided for in article 515-9 of the Civil Code which provides that “When the violence exerted within the couple or by a former spouse, a former partner bound by a civil pact of solidarity or a former partner endangers the person who is the victim, one or more children, the family court judge can urgently issue the latter a protection order”.

4. The law, like a white knight, intends to enter into the intimacy of families to defend the victim from the blows of a violent spouse, partner or cohabiting partner. The physical violence of family secrecy responds to the law. Great ambition, almost insurmountable challenge: in the face of the secrecy of violence within the couple and psychological pressures respond to the law and the public disclosure of violence experienced as shameful or hidden by fear, to the fear of even more violent reprisals responds the recourse to judge, third party occasionally present, necessarily intervening late. However, despite the seemingly insurmountable inadequacy of the legal instruments, the new legislative provisions attempt to provide an answer to the unacceptable. The order of the family court judge must be an effective weapon of protection,
Thus, issued by the JAF, this order is intended to be highly effective (I) and an appropriate procedure (II) .

An Effective Protection Order:-

 

5. To offer effective protection, the order must above all go beyond legal divisions and take into account the multifaceted reality of couples in the 21st century. She must leave marriage to embrace all forms of conjugality and protect the greatest number of victims (A). However, the intensification of the fight against violence cannot be content with seizing all the potential victims. The legislation of July 9, 2010 wanted to multiply the most varied and appropriate measures in an attempt to take into account the immense diversity of situations of violence within couples (B).

 An expanded framework:-

6. Remember, there was a first attempt by the legislator to fight against violence. The law of May 26, 2004 had taken a first step in the fight against domestic violence by establishing, under the terms of article 220-1 of the Civil Code, summary violence.

Like a sword in water, the measure could not be effective. Too restrictive or even exclusive, it did not apply to all forms of conjugality. Indeed, this device had a very limited field of application since it only allowed the violent spouse to be evicted from the marital home, before divorce or legal separation proceedings were initiated. Thus, only the married victim could benefit from this protection. The means of combating violence within the couple on the civil level were therefore incomplete or in any case reserved for a few, unlike the criminal means.

7. But an attempt is a great experience which has made it possible to prepare new texts by correcting the faults of the first ones. If the field of application of the first protective measures was unsuited to the reality of modern couples; the protection order goes beyond legal and pragmatic qualifications.

8. From now on, with the law of July 9, 2010, the potential beneficiaries of civil protection are more numerous. Indeed, the new protection measures that may be enacted by the Family Court Judge apply equally to all forms of conjugality but also to persons of foreign nationality. In addition, children are taken into account by the magistrate within the framework of the protection order.
Thus, the legislator clearly did not want to confine the debate around gender violence.

9. On the one hand, the protection order was designed to respond to specific situations of violence: those exercised within the couple. There is therefore a real emergence of a new law in France since domestic violence is considered lato sensu. The fact that they concern all forms of cohabitation outside marriage has been taken into account. We are therefore moving towards the construction of a common right of the couple.
Consequently, the implementation of this ordinance is subordinated to the quality of victim of the violence which generates two consequences: it does not matter that the couple is married, PACS or in cohabitation and it does not matter that the couple has broken up. By bringing within the scope of this ordinance, ex-married persons, ex-partners of a civil union or ex-concubines, the law follows a more criminal than civil logic. From now on, the protection of the physical and moral integrity of the victim of violence within couples takes precedence over the status of the relationship.
Through this enlargement, the system enshrines a principle of equality and thus responds to community pressure by bringing the texts into line with Article 14 of the European Convention on Human Rights.

10. On the other hand, the measures resulting from the law of July 9, 2010 are applicable to adults threatened with forced marriage. They can apply to the family court judge to obtain a protection order. This magistrate then has the power to order the temporary ban on leaving the territory of the threatened person. This prohibition is entered in the file of persons wanted by the Public Prosecutor.

11. Other rights are also granted to them.
Indeed, it is planned to strengthen the conditions for renewing the residence permit of those who, united with a French national or entered France for family reunification, are victims of violence within the couple.
They can not only have a right of residence if a protection order is issued in their favor but also be granted a residence card when the author is definitively sentenced for any offense with the aggravating circumstance of spouse, cohabitant or partner linked to a PACS. In addition, foreigners who have a residence permit in France can obtain a return visa from the French authorities when their spouse has stolen their identity documents.

12. Finally, the new system does not limit itself to taking into consideration the direct victim. Children are also targeted since the family court judge can issue a protection order when they are in danger.
It is obviously necessary to take into account the consequences on the children of the violence exerted by one parent on the other parent. Even if they are not the immediate victims of the violence, as witnesses, they necessarily suffer its repercussions.

13. However, an insurmountable limit is imposed on the law and its implementation: the child victim or spectator of violence within the couple is still excluded from the persons having standing to bring legal proceedings in matters of parental authority. It is only the parent who will be able to seize the family court judge when he finds that the child is endangered by his former or current companion. Moreover, it is often the awareness by a parent that the other parent or the behavior of the latter endangers the common child, which is the trigger for a desire for protection. Too often, there will remain hypotheses where the child will not be able to access legal protection against the violence of which he is a spectator within the family in the absence of the presence of a courageous or lucid adult.

14. But to ensure significant effectiveness of this mechanism resulting from the law of July 9, 2010, the legislator did not content itself with broadening the scope of protected persons. The range of measures that can be adopted within the framework of a protection order is also wide.

B. Extended reach

15. To be optimal, the protection of victims of domestic violence must be complete and based on a system that will allow the person in danger to escape the hold of the perpetrator of the violence, whether physically, legally or materially. It was therefore necessary for the judge seized to be able to enact in his protection order civil measures such as the eviction from the home of the perpetrator of the violence, which could be accompanied by other measures with a criminal dimension. The aim is to effectively eliminate the risk of reprisals.
Today, within the framework of the protection order, the Family Court Judge actually has extensive powers under three different orders.

1) Civil measures

16. First of all, this magistrate can pronounce non-exclusive civil measures.

a) Housing: eviction of the violent

17. To ensure the safety of the victim, the magistrate may first assign the couple’s accommodation to the latter by ordering the eviction of the person who engages in violence. This device is supplemented by the possibility of making the defendant responsible for the payment of the costs relating to housing.
From now on, it is up to the judge to ensure that the victim of the violence is not placed in a financially delicate position which would force him to keep silent about what he is suffering because he does not have the personal means to take charge. the amount of housing costs. This magistrate becomes the guarantor of the trust of enslaved litigants within their couple.
Moreover, for this measure to be really effective, the guarantees against the expulsion of the spouse, PACS partner or cohabiting partner evicted for violence are not applicable.
Therefore, the latter will not be able to oppose the guarantees according to which the eviction can only take place at the end of a period of two months following the order to leave the premises; this would not be in accordance with the imperative of urgency which drives the decision to evict the dwelling.
Moreover, as was already the case for summary violence, the violent spouse cannot ask to benefit from the stay of execution of this measure and in particular the winter break running from November 1 of each year until March 15 of the following year.
The sword of Damocles is now on the head of the one who wants to submit by violence the person with whom he lives.
But in any case, the judicial officer will have to continue to check that the eviction operation is not carried out on an expired title.

b) Protective measures for the child

18. Secondly and still within the framework of the protection order, a second type of civil measure can be enacted. The Family Affairs Judge has the possibility of ruling on the modalities of exercise of parental authority. Seized in a context of violence within the separating couple, it must guarantee the protection of the best interests of the common child.

19. Two measures are possible. One is radical, the other less so.

First measure
Either, parental authority is withdrawn from those who are violent. In this case, in order to ensure the continuity and effectiveness of the child’s ties with the parent who does not exercise parental authority, the judge may organize visitation rights in a meeting place . Similar provisions have been adopted by the legislator in the event of a criminal conviction of one of the parents for a crime committed on their child or on the other parent.
Anyone who is violent in the family home is now presumed to be a bad parent.
Second measurement
Either the joint exercise of parental authority is maintained and is accompanied by a right of visit and/or classic accommodation or alternating residence. In this circumstance, the judge has the possibility of organizing the use of a secure place for the visit or the handing over of the child to one or the other parent because it is necessary to avoid any direct contact between them and this, always in the interest of their child.
In all cases, and whatever the form of conjugality, the violent parent must continue to contribute to the maintenance and education of the children.

20. Apart from these civil measures, the family court judge may be called upon to take other “criminal” measures. Civil law and more particularly family law is, with the law of July 9, 2010, endowed with heavy weapons.

2) Penal measures

a) Weapons

21. The magistrate may prohibit the defendant from possessing a weapon and handing it over to the registry. This weapon can be any object used to commit the unacceptable within the couple.

b) The prohibition to meet the victim and any other designated persons

22. The JAF may also prohibit him from meeting or receiving the victim and his children as well as any other persons he designates. This is to prevent the perpetrator of violence within the couple from exerting any further pressure on the person requesting protection, particularly through the latter’s relatives.

c) Concealment of the victim’s address

23. In addition, victims are allowed to conceal their address in order to avoid possible reprisals. They can then elect domicile with the lawyer who assists or represents them or with the Public Prosecutor and this, for all civil proceedings in which they are also parties. There are, however, two temperaments to this device.
Firstly, for the purposes of executing a court decision, the bailiff must be aware of the address of this person without being able to reveal it to his principal.
Secondly, the lawyer or the Public Prosecutor with whom he is domiciled communicates the plaintiff’s address without delay to the civil judge.
In any case, it is not a question of depriving the device of its effectiveness since the professionals concerned are bound to secrecy.
d) Ban on leaving the territory

24. Furthermore, and to ward off any risk of international removal of the common child by one of the parents and this in fraud of the rights of the other parent, the family court judge may also order the registration of the prohibition of leaving the territory of the child without the authorization of both parents, on the passport of each of them.
However, in the presence of binational couples, because the effectiveness of such a measure is destroyed since the French judge cannot order this registration on a foreign passport, it has been planned to register this ban on leaving the territory in the file. wanted people.

e) Legal aid

25. Finally, the family court judge may order an aid measure in favor of the beneficiary of the protection order, such as the provisional admission to legal aid of the plaintiff or even the presentation of a list of qualified legal persons likely to accompany him throughout the duration of the protection order .

26. In any event, all of these measures enacted within the framework of a protection order only have a limited validity period of four months, renewable once for married couples who file a petition for divorce. or in legal separation. On the other hand, these protective devices for cohabitants or PACS partners cannot, under any circumstances, be subject to any extension. One can wonder about this textual gap. But it is also possible to analyze it as being the minimum guaranteed to someone who is the victim of violence inflicted by his companion outside of any matrimonial union. Whereas in the past, he could not benefit from any protection, he is now allowed to organize the safeguard of his physical and moral integrity with a view to a possible rupture.

27. In any event, a right without an appropriate procedure is nothing, it remains a dead letter. The legislator has therefore accompanied these civil measures, with a penal connotation or assistance, enacted in the protection order with an appropriate procedure.

II. An adapted procedural framework

28. Faced with violence and the urgent need to effectively protect the victim, justice, despite its reputation for being slow, must resort to violence for the good cause and intervene quickly. The decree of December 29, 2010 made it possible to establish an emergency procedure (A) but which, considered as an anomaly, remains exceptional (B).
A. An emergency procedure

29. In all cases, the procedure must be rapid in order to urgently protect the victims of domestic violence. Whether at the court referral stage, during the hearing or during the decision, it is the imperative of urgency that must govern the entire process.

1) Referral

30. The Family Affairs Judge may be seized with a view to obtaining a protection order, by the Public Prosecutor’s Office with the agreement of the victim because, often frightened, the latter may have some difficulty in acting on their own and seizing the judge. But that assumes she filed a complaint. However, this approach is just as delicate as the fact of applying directly or through a lawyer to the magistrate to be protected. Indeed the plaintiff knows that his spouse, PACS partner or violent partner will necessarily be summoned by the representatives of the public authority to be heard on the facts denounced and that, back home, he will take revenge.

31. The court may also be seized by the victim himself.

In the latter case, the referral can be made by way of request in the form of a registered letter with acknowledgment of receipt or by way of summons in the form of summary proceedings. This act must include the indication of the hearing date communicated beforehand by the JAF and be denounced to the Public Prosecutor under penalty of nullity.

2) The hearing

32. Upon receipt of the application for a protection order, the parties must be summoned for a hearing. a) Terms of the notice

This summons can be carried out, either by the care of the registry in the form of a registered letter with acknowledgment of receipt coupled with a simple letter in the event of referral by request, or by service if the judge is seized within the framework of a summons in the form of summary proceedings. Exceptionally, the magistrate may decide that the police or gendarmerie must deliver the summons to the defendant in person against receipt when there is a risk of particularly serious and imminent danger for the plaintiff; this decision constitutes a measure of judicial administration.
Ultimately, this summons addressed to the defendant is equivalent to a summons. It includes in appendix a copy of the request or summons as well as the documents on which the request is based. Furthermore, it is up to the family court judge to ensure that sufficient time has elapsed between the summons and the hearing for the defendant to be able to prepare his defence.
As for the Public Prosecutor, he has the ability to give his opinion on the request without the civil judge having the obligation to comply with it.

33. At the hearing, the magistrate may hear the parties together or separately in order to protect the victim by preventing him from being confronted with the perpetrator of the alleged acts of violence. This is to limit painful confrontations.

b) The role of the lawyer

34. The parties may be assisted by or represented by a lawyer. As part of the performance, their presence is not mandatory. This is to meet the need for speed even when one or other of the parties, for a legitimate reason, cannot be heard. It is possible to consider that this is a breach of respect for the adversarial principle, especially since the judge will only be able to grant a postponement to a subsequent hearing at very short notice given the urgency of protecting the victim who asks for it.

c) Secrecy

 

35. Furthermore, another specificity of this hearing lies in the fact that it can be held in private. This suggests that, in principle, the hearing would be public since the Public Prosecutor’s Office has the option of being present so as to be able to initiate criminal proceedings against the perpetrator of the alleged acts of violence. In reality, it is a question of making possible a certain coordination, by a reciprocal information of the penal judge and the civil judge who are fully associated in the fight against the violences made primarily to the women.

3) Speed

36. Obviously, it is important to note that, because the procedure must be rapid to ensure the protection of a person in danger within the couple, it is not always possible for the family court judge to carry out the investigative measures it deems necessary. Therefore, there is an obvious risk of instrumentalization of this procedure in order to obtain what would not have been granted outside this particular context of violence within the couple. However, it is still preferable to prevent the risk incurred by the supposed victim or the child who is a spectator, rather than waiting for the results of an investigation. This is why the magistrate will make his decision on the basis of the first reliable elements which will have been communicated to him, knowing that he will be able,

Thus, the protection order must be issued urgently, without a time limit being specified.

4) The characteristics of the prescription

37. This order also has two characteristics.

a) A temporary order

It is temporary since it can only be applied for a period limited to four months following the notification, either by service or, within the framework of the decision, by registered letter with acknowledgment of receipt or by administrative means. It is enforceable on a provisional basis, unless the judge decides otherwise.
But throughout its validity, the filing of a request for divorce or legal separation makes it possible to extend the duration of the measures enacted. In fact, in accordance with article 1136-13 of the Code of Civil Procedure, when such a request is made before the expiry of the duration of the protection measures or when the order is pronounced while divorce or legal separation is in progress, the measures of the protection order continue to produce their effects until a decision ruling on the application for divorce or legal separation has become res judicata. On the other hand, the measures taken in application of 3°,

b An interim order

It is provisional since the Family Affairs Judge may, at any time and at the request of the public prosecutor or one or other of the parties, or after having carried out any useful investigative measure, and after having invited each of the parties to express their views, removing or modifying the measures set out in the protection order, deciding on new ones, granting the defendant a temporary dispensation from observing certain of the obligations imposed on him or revoking the protective order.

5) Remedies

38. Lastly, like any court decision, the protection order is subject to appeal: the appeal is opened within fifteen days following its notification and must be lodged by a request submitted or addressed to the court registry. court of Appeal. It is ruled on this, as the case may be, by the First President of the Court of Appeal, the pre-trial counselor or the trial formation.

However, this remedy is likely to be deprived of any interest if it is heard after the end of the protective order.

39. It must be noted that, justified by the urgency, this procedure ultimately turns out to be an exceptional procedure.

B. An exceptional procedure

40. The legislator has become aware of the specificity of domestic violence and has gradually adapted civil law in order to better protect victims. It is therefore an exceptional procedure since derogations have been taken with other branches of law.
Exceptional in more ways than one, it must be considered successively:

1) The proof

41. First of all, concerning the law of evidence, it is no longer a question of the search for truth but of the search for plausibility.
Indeed, in accordance with article 515-9 of the Civil Code, the family court judge can only issue a protection order if there are serious reasons to consider the commission of the alleged acts of violence to be probable. In addition, the victim must be exposed to danger. These two conditions are cumulative. It remains however to wonder about the appreciation of these notions.

a) The hazard

42. Danger is a subjective concept. Only the family court judge can appreciate the reality of the danger to which a person claims to be exposed within the couple, thanks to elements which make the alleged acts of violence probable.

b) The presumption

43. In this regard, some consider that there is a risk of a breach of equality between the parties to the proceedings. Such a provision is then analyzed as establishing a legal presumption of guilt, contrary both to the fundamental principles of our law and to the European Convention on Human Rights which guarantees the parties the right to a fair trial.
However, both European and domestic law now validates such derogations from the principle of the presumption of innocence, which must include the elements making the alleged acts of violence plausible for the issue by the family court judge of a restraining order. protection.
Moreover, although the wording of article 515-9 of the Civil Code seems awkward because it seems to reverse the principles which govern the burden of proof, the rule thus laid down is by no means essential. Indeed, in terms of legal facts, proof in civil law is free and can be done by simple presumptions of man. These allow the judge to form his conviction on clues whose probative force is left to his free discretion. In reality, the text only reflects the desire of the legislator to lighten the burden of proof, the burden of which continues to fall on the plaintiff.
In addition, even if the family court judge is content with elements making the violence likely to endanger the victim, the fact remains that for the plaintiff, it will be difficult to produce these elements since what he suffers, takes place behind closed doors.

2) The paradoxes of protection

a) According to the couples

44. In addition, the protection order does not only derogate from the right of evidence, it also undermines the very philosophy of cohabitation, which can no longer be considered as a free union since the cohabitant can be expelled even though he is the holder of the lease or owner of his dwelling. Furthermore, he may be ordered to bear the cost of the rent without being entitled to any occupancy allowance, even though he is not related to the beneficiary of the protection order either by marriage or by a PACS.
But a free union which is no longer so because the victim of violence is enslaved by the one who violates her, is no longer a union where one is free to strike the other without the right being able to intervene.
b) The paradoxes of legal protection

45. Finally, contrary to certain foundations of contract law, the lessor may be opposed by an occupant on a precarious basis who is not the signatory of the lease. But this recourse to the forced lease is not a novelty in family law.

46. ​​In any case, the law of 9 July 2010 created a special legal arsenal intended to fight effectively against violence within the couple. The passage of this law and the strengthening of judicial powers were essential given the constant increase in the number of victims of this scourge. It remains to be hoped that the protection order will prove to be one of the major assets in the fight against violence, especially since the repressive aspect of this law makes the criminal response a necessary complement. Today, civil law and criminal law work together.

47. The law of 28 December 2019 (1) aimed at taking action against domestic violence sets the deadline for the issuance of a protection order by the JAF at a maximum of six days (issuance which is no longer conditional on the filing of a complaint). 

In addition, it extends the wearing of the BAR electronic device (anti-reconciliation bracelet) in the event of an offense punishable by at least 3 years’ imprisonment committed against one’s spouse. 

The law of July 30, 2020 (2), for its part, establishes in particular:

  • direct enjoyment of the marital home to the spouse who is the victim of violence. 
  • an automatic suspension of visitation rights in the event of a crime committed against the victim parent from the prosecution, from the conviction or even from the establishment of judicial control of the violent parent. 
  • discharge of the maintenance obligation for the ascendants, descendants, brothers and sisters of a person convicted of domestic violence.

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