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1. The phenomenon of domestic violence is a universal reality.\u00a0However, its extent is still poorly understood.\u00a0In France, as everywhere else, neither education, nor money, nor social background can protect a person from violence within the couple.\u00a0Most 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<\/a> .<\/p>\n 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.\u00a0Yet 156 women died in 2008, or one woman every two and a half days<\/a>.<\/p>\n <\/p>\n However, the victims of violence exerted by the one who shares their life do not file a complaint.\u00a0They vacillate between the fear of reprisals and the illusion of love felt for the person who nevertheless strikes them.\u00a0In 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. 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. 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.\u00a0The physical violence of family secrecy responds to the law.\u00a0Great 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.\u00a0However, despite the seemingly insurmountable inadequacy of the legal instruments, the new legislative provisions attempt to provide an answer to the unacceptable.\u00a0The order of the family court judge must be an effective weapon of protection, <\/p>\n 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.\u00a0She must leave marriage to embrace all forms of conjugality and protect the greatest number of victims (A).\u00a0However, the intensification of the fight against violence cannot be content with seizing all the potential victims.\u00a0The 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).<\/p>\n 6. Remember, there was a first attempt by the legislator to fight against violence.\u00a0The 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.<\/p>\n Like a sword in water, the measure could not be effective.\u00a0Too restrictive or even exclusive, it did not apply to all forms of conjugality.\u00a0Indeed, 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.\u00a0Thus, only the married victim could benefit from this protection.\u00a0The 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.<\/p>\n 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.\u00a0If the field of application of the first protective measures was unsuited to the reality of modern couples;\u00a0the protection order goes beyond legal and pragmatic qualifications.<\/p>\n 8. From now on, with the law of July 9, 2010, the potential beneficiaries of civil protection are more numerous.\u00a0Indeed, 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.\u00a0In addition, children are taken into account by the magistrate within the framework of the protection order. 9. On the one hand, the protection order was designed to respond to specific situations of violence: those exercised within the couple.\u00a0There is therefore a real emergence of a new law in France since domestic violence is considered lato sensu.\u00a0The fact that they concern all forms of cohabitation outside marriage has been taken into account.\u00a0We are therefore moving towards the construction of a common right of the couple. 10. On the other hand, the measures resulting from the law of July 9, 2010 are applicable to adults threatened with forced marriage.\u00a0They can apply to the family court judge to obtain a protection order.\u00a0This magistrate then has the power to order the temporary ban on leaving the territory of the threatened person.\u00a0This prohibition is entered in the file of persons wanted by the Public Prosecutor.<\/p>\n 11. Other rights are also granted to them. 12. Finally, the new system does not limit itself to taking into consideration the direct victim.\u00a0Children are also targeted since the family court judge can issue a protection order when they are in danger. 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.\u00a0It 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.\u00a0Moreover, 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.\u00a0Too 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.<\/p>\n 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.\u00a0The range of measures that can be adopted within the framework of a protection order is also wide.<\/p>\n B. Extended reach<\/p>\n 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.\u00a0It 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.\u00a0The aim is to effectively eliminate the risk of reprisals. 1) Civil measures<\/p>\n 16. First of all, this magistrate can pronounce non-exclusive civil measures.<\/p>\n a) Housing: eviction of the violent<\/p>\n 17. To ensure the safety of the victim, the magistrate may first assign the couple\u2019s accommodation to the latter by ordering the eviction of the person who engages in violence.\u00a0This device is supplemented by the possibility of making the defendant responsible for the payment of the costs relating to housing. b) Protective measures for the child<\/p>\n 18. Secondly and still within the framework of the protection order, a second type of civil measure can be enacted.\u00a0The Family Affairs Judge has the possibility of ruling on the modalities of exercise of parental authority.\u00a0Seized in a context of violence within the separating couple, it must guarantee the protection of the best interests of the common child.<\/p>\n 19. Two measures are possible.\u00a0One is radical, the other less so.<\/p>\n First measure 20. Apart from these civil measures, the family court judge may be called upon to take other \u201ccriminal\u201d measures.\u00a0Civil law and more particularly family law is, with the law of July 9, 2010, endowed with heavy weapons.<\/p>\n 2) Penal measures<\/p>\n a) Weapons<\/p>\n 21. The magistrate may prohibit the defendant from possessing a weapon and handing it over to the registry.\u00a0This weapon can be any object used to commit the unacceptable within the couple.<\/p>\n b) The prohibition to meet the victim and any other designated persons<\/p>\n 22. The JAF may also prohibit him from meeting or receiving the victim and his children as well as any other persons he designates.\u00a0This is to prevent the perpetrator of violence within the couple from exerting any further pressure on the person requesting protection, particularly through the latter\u2019s relatives.<\/p>\n c) Concealment of the victim\u2019s address<\/p>\n 23. In addition, victims are allowed to conceal their address in order to avoid possible reprisals.\u00a0They 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.\u00a0There are, however, two temperaments to this device. 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. e) Legal aid<\/p>\n 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 .<\/p>\n 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.\u00a0On the other hand, these protective devices for cohabitants or PACS partners cannot, under any circumstances, be subject to any extension.\u00a0One can wonder about this textual gap.\u00a0But 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.\u00a0Whereas 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.<\/p>\n 27. In any event, a right without an appropriate procedure is nothing, it remains a dead letter.\u00a0The legislator has therefore accompanied these civil measures, with a penal connotation or assistance, enacted in the protection order with an appropriate procedure.<\/p>\n II.\u00a0An adapted procedural framework<\/p>\n 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.\u00a0The decree of December 29, 2010 made it possible to establish an emergency procedure (A) but which, considered as an anomaly, remains exceptional (B). 29. In all cases, the procedure must be rapid in order to urgently protect the victims of domestic violence.\u00a0Whether at the court referral stage, during the hearing or during the decision, it is the imperative of urgency that must govern the entire process.<\/p>\n 1) Referral<\/p>\n 30. The Family Affairs Judge may be seized with a view to obtaining a protection order, by the Public Prosecutor\u2019s 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.\u00a0But that assumes she filed a complaint.\u00a0However, this approach is just as delicate as the fact of applying directly or through a lawyer to the magistrate to be protected.\u00a0Indeed 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.<\/p>\n 31. The court may also be seized by the victim himself.<\/p>\n 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.\u00a0This 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.<\/p>\n 2) The hearing<\/p>\n 32. Upon receipt of the application for a protection order, the parties must be summoned for a hearing.\u00a0a) Terms of the notice<\/p>\n 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.\u00a0Exceptionally, 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;\u00a0this decision constitutes a measure of judicial administration. 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.\u00a0This is to limit painful confrontations.<\/p>\n b) The role of the lawyer<\/p>\n 34. The parties may be assisted by or represented by a lawyer.\u00a0As part of the performance, their presence is not mandatory.\u00a0This is to meet the need for speed even when one or other of the parties, for a legitimate reason, cannot be heard.\u00a0It 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.<\/p>\n c) Secrecy<\/p>\n <\/p>\n 35. Furthermore, another specificity of this hearing lies in the fact that it can be held in private.\u00a0This suggests that, in principle, the hearing would be public since the Public Prosecutor\u2019s 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.\u00a0In 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.<\/p>\n 3) Speed<\/p>\n 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.\u00a0Therefore, 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.\u00a0However, 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.\u00a0This 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,<\/p>\n Thus, the protection order must be issued urgently, without a time limit being specified.<\/p>\n 4) The characteristics of the prescription<\/p>\n 37. This order also has two characteristics.<\/p>\n a) A temporary order<\/p>\n 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.\u00a0It is enforceable on a provisional basis, unless the judge decides otherwise. b An interim order<\/p>\n 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.<\/p>\n 5) Remedies<\/p>\n 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.\u00a0It 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.<\/p>\n However, this remedy is likely to be deprived of any interest if it is heard after the end of the protective order.<\/p>\n 39. It must be noted that, justified by the urgency, this procedure ultimately turns out to be an exceptional procedure.<\/p>\n B. An exceptional procedure<\/p>\n 40. The legislator has become aware of the specificity of domestic violence and has gradually adapted civil law in order to better protect victims.\u00a0It is therefore an exceptional procedure since derogations have been taken with other branches of law. 1) The proof<\/p>\n 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. a) The hazard<\/p>\n 42. Danger is a subjective concept.\u00a0Only 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.<\/p>\n b) The presumption<\/p>\n 43. In this regard, some consider that there is a risk of a breach of equality between the parties to the proceedings.\u00a0Such 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. 2) The paradoxes of protection<\/p>\n a) According to the couples<\/p>\n 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.\u00a0Furthermore, 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. 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.\u00a0But this recourse to the forced lease is not a novelty in family law.<\/p>\n 46. \u200b\u200bIn any case, the law of 9 July 2010 created a special legal arsenal intended to fight effectively against violence within the couple.\u00a0The passage of this law and the strengthening of judicial powers were essential given the constant increase in the number of victims of this scourge.\u00a0It 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.\u00a0Today, civil law and criminal law work together.<\/p>\n 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).\u00a0<\/p>\n 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\u2019 imprisonment committed against one\u2019s spouse.\u00a0<\/p>\n The law of July 30, 2020 (2), for its part, establishes in particular:<\/p>\n
This behavior in the couple has an impact on the health of the women and children who are victims or spectators.\u00a0Their physical consequences are easily identifiable, but their psychological consequences are more serious, especially since the violent person\u2019s objective is not to inflict injuries but rather to reify his victim.<\/p>\n
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 \u201cWhen 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\u201d.<\/p>\n
Thus, issued by the JAF, this order is intended to be highly effective (I) and an appropriate procedure (II) .<\/p>\nAn Effective Protection Order:-<\/h2>\n
\u00a0An expanded framework:-<\/h2>\n
Thus, the legislator clearly did not want to confine the debate around gender violence.<\/p>\n
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.\u00a0By 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.\u00a0From 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.<\/p>\n
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.\u00a0In 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.<\/p>\n
It is obviously necessary to take into account the consequences on the children of the violence exerted by one parent on the other parent.\u00a0Even if they are not the immediate victims of the violence, as witnesses, they necessarily suffer its repercussions.<\/p>\n
Today, within the framework of the protection order, the Family Court Judge actually has extensive powers under three different orders.<\/p>\n
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.\u00a0This 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;\u00a0this 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.<\/p>\n
Either, parental authority is withdrawn from those who are violent.\u00a0In this case, in order to ensure the continuity and effectiveness of the child\u2019s ties with the parent who does not exercise parental authority, the judge may organize visitation rights in a meeting place .\u00a0Similar 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.\u00a0In 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.<\/p>\n
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\u2019s 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<\/p>\n
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.<\/p>\n
A. An emergency procedure<\/p>\n
Ultimately, this summons addressed to the defendant is equivalent to a summons.\u00a0It includes in appendix a copy of the request or summons as well as the documents on which the request is based.\u00a0Furthermore, 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.<\/p>\n
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.\u00a0In 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.\u00a0On the other hand, the measures taken in application of 3\u00b0,<\/p>\n
Exceptional in more ways than one, it must be considered successively:<\/p>\n
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.\u00a0In addition, the victim must be exposed to danger.\u00a0These two conditions are cumulative.\u00a0It remains however to wonder about the appreciation of these notions.<\/p>\n
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.\u00a0Indeed, in terms of legal facts, proof in civil law is free and can be done by simple presumptions of man.\u00a0These allow the judge to form his conviction on clues whose probative force is left to his free discretion.\u00a0In 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.<\/p>\n
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<\/p>\n\n
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