The search and administration of evidence are essential elements in any proceedings, as each claim must be justified to be granted, especially in divorce, post-divorce or inheritance litigation.
However, there are many cases where one of the parties does not have access to the information.
A specific and exceptional ex parte procedure is provided for under Monegasque law to obtain evidence useful for any proceedings; this is the "compulsoire" petition, the conditions of which are as follows:
- The applicant must establish a serious reason and justify a legitimate, existing, and current interest that is the basis of his petition;
- No proceedings on the merits of the case must have been initiated, particularly in the case of divorce litigation as dispositions relating to the administration of evidence may be used in the proceedings.
For example, a party who does not know the income of his / her spouse can file a "compulsoire" petition to request authorisation to mandate a bailiff to go to an administration to obtain copies of his / her pay slips.
The recent law n°1.511 of December 2nd, 2021, published on December 17th, 2021, modifying the civil procedure, rebuilds in particular the dispositions relating to the ex parte orders. The legislator has moreover codified the procedural practice which was until now a pure praetorian creation.
The general extension of the exercise of a recourse against ex parte orders is a major contribution of this law, by distinguishing two cases:
- If the petition is not granted, an appeal may be filed.
- If the petition is granted, any interested party may file a "référé" proceeding before the judge who issued the order for the purpose of revoking the ex parte order.
Any other way of contesting the ex parte decision issued will be inadmissible.
This law of December 2nd, 2021, modifying civil procedure, will be effective on February 17th, 2022, and will apply immediately to proceedings on petition.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.