2023-08-07 06:00:23
Is it legitimate for same-sex divorces to be subject to the same rules as heterosexual divorces, which notably take into account the duration of the marriage, when same-sex marriages have only been authorized since 2013 ? This is, in essence, the question that a former husband wanted to ask the Constitutional Council, but which the Court of Cassation refused on April 19, 2023 (23-40.004), that it be forwarded to that institution.
Remember that when spouses divorce, the wealthier of the two may be ordered to pay the other a certain amount of money, called a “compensatory allowance”, because it is intended to “compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective living conditions” (article 270 of the civil code). To calculate it, the judge takes into account a certain number of criteria, including the duration of the marriage (article 271 of the civil code).
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In principle, the longer the marriage, the higher the compensatory allowance. But beware ! The duration of the marriage is not that of the common life. So much the worse for the spouses who lived in concubinage before « regularize » their union: this period is not counted. The Court of Cassation decided it, the 16 avril 2008 (07-12.814), by a judgment which operated a reversal of jurisprudence. She has consistently confirmed this ever since.
Life before marriage
It is therefore this regime that a family affairs judge applies, on January 20, 2022, when he pronounces the divorce of Mr. X and Mr. Y. The two men, in a relationship for several years, were married on September 21, 2013 , as they were entitled to, thanks to the adoption of the law of May 17, 2013 opening up marriage to same-sex couples.
The judge orders Mr. X to pay a compensatory allowance to Mr. Y, based, in particular, on the duration of the marriage, which was only eight years and a few months. Mr. Y, who finds the sum insufficient, and who regrets that life prior to marriage is not taken into account, appeals.
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He asks that the Court of Appeal of Amiens have the following priority question of constitutionality transmitted to the Constitutional Council: does the fact that the judge takes into account the duration of the marriage not affect “to the principle of equality and the principle of non-discrimination which is its corollary, enshrined in Article 1 of the 1958 Constitution and paragraph 3 of the Preamble to the 1946 Constitution? » Indeed, the duration of homosexual marriage is necessarily limited, compared to that of heterosexual marriage.
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