Separation of bodies refers to the situation where two married individuals no longer live under the same roof following a court ruling that ends their obligation to cohabit, without affecting the marriage itself. This measure is an alternative to divorce. However, separation of bodies can remain in effect until one of the spouses dies. It can also lead to a resumption of cohabitation or a divorce. It also results in the separation of assets.
In this article, we will explore what separation of bodies entails, the procedure to follow, and the consequences of this measure.
What is Separation of Bodies?
In general, separation of bodies is a rarely used procedure. It is chosen by married individuals who do not want to divorce due to reasons such as religious beliefs that require them to uphold the indissolubility of marriage or who simply do not wish to divorce, or whose national law prohibits divorce. This measure applies exclusively to married couples regardless of their matrimonial regime and allows the marriage bond to persist without living together. However, separation of bodies allows the spouses to continue benefiting from the tax advantages of marriage, such as income tax benefits.
Separation of bodies always results in the separation of assets and is subject to the same rules applicable to divorce. The procedure is the same, but the consequences differ.
Legal Consequences of Separation of Bodies
Once the separation of bodies judgment is rendered, the spouses are still considered married despite their separate residences. Separation of bodies does not dissolve the marriage but does not impact the right to request a divorce. However, the judgment of separation of bodies affects the spouses, leading to a reduction in their marital obligations and a modification of their property regime (Arts. 117 and 118 CC).
Separation of Assets by Operation of Law
Separation of bodies results in an automatic change to the matrimonial property regime. The spouses are subjected to the separation of assets regime without needing to follow the procedure for modifying the matrimonial property regime. However, spouses married under a community property regime must liquidate the matrimonial property regime. This liquidation is carried out before a notary.
Indeed, the regime for the spouses will be separation of assets. For example, property purchased by one spouse during the separation of bodies will be considered as separate property and not as joint property. However, the spouses retain the same succession rights, except in cases of separation of bodies by mutual consent. Spouses may indeed renounce their succession rights in the separation of bodies agreement.
It is worth noting that the separation of assets regime will be maintained if the spouses resume cohabitation, unless they choose a different matrimonial property regime.
Persistence of Marital Rights and Obligations
As noted, separation of bodies does not terminate the spouses' obligations but leads to a reduction in these obligations. Nevertheless, the spouses continue to enjoy the benefits of marriage. Among these obligations are:
The Cessation of Cohabitation Duty: Separation of bodies results in the interruption of the spouses’ common life. Thus, the spouses stop living together, but the marital bond remains intact. The judge will decide on the allocation of the family home. Obligations arising from marriage, such as the duty of fidelity, persist.
The Duty of Support: During the separation of bodies, the less financially secure spouse may request alimony from the other spouse. The amount of alimony will be set by the judge.
Ending the Separation of Bodies
The spouses can end the separation of bodies through two means: either by resuming cohabitation, which requires a declaration before a notary; in this case, all effects of marriage are restored, or by filing for divorce, which automatically converts the request before the judge.
If you wish to obtain more information, we would be delighted to welcome you to the Valentin Legal Consultation.
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