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De Facto separation: definition
A de facto separation is a situation in which spouses no longer live together. It may occur either by mutual agreement or because one spouse has left the family home. It is referred to as a de facto separation because it is not governed by a specific legal procedure. The spouses have not filed for legal separation (séparation de corps) or divorce.
What are the legal consequences of a De Facto separation?
Continuation of the rights and obligations arising from marriage
All obligations arising from marriage remain in force: the duty to live together (French Civil Code, Article 215), the obligation to contribute to household expenses (French Civil Code, Article 213), joint liability for household debts and obligations relating to the children’s education (French Civil Code, Article 220), and the prohibition on either spouse disposing of rights in the family home without the consent of the other (French Civil Code, Article 215, paragraph 3).
The same applies to the spouses’ rights, which continue to exist despite their separation. For example, each spouse retains the power to administer jointly owned marital property.
Exceptions and Qualifications
- A de facto separation may provide grounds for seeking a divorce based on the “irretrievable breakdown of the marital relationship” (altération définitive du lien conjugal) (Articles 237 and 238 of the French Civil Code). The spouse applying for divorce must demonstrate that marital cohabitation has ceased for at least one year
For tax purposes, de facto separated spouses may be taxed separately in two circumstances (French General Tax Code, Article 6, 4°; BOI-IR-CHAMP-20-20-10):
- where they are married under a separate property regime and do not live under the same roof
- where either spouse has left the marital home and each spouse has a separate source of income. In practical terms, each spouse must file a separate income tax return. Unless evidence to the contrary is provided, jointly received income is deemed to be divided equally between the spouses.
Does a De Facto separation involve any risks?
• All obligations arising from marriage remain in force, including joint liability for household debts. Therefore, if one spouse incurs a debt falling within this category, the other spouse is also liable for it.
• Savings accumulated by spouses married under a community property regime remain community property, even if the spouses hold them in “personal” bank accounts. Consequently, in the event of divorce, these savings will be divided between them.
• Lastly, if a spouse married under a community property regime wishes to purchase real property, that property will, as a general rule, form part of the community property because it was acquired during the marriage.
The only way to formally establish the separation in legal terms is to apply for legal separation (séparation de corps) or divorce. In either case, the spouses must proceed with the liquidation and division of their property.