Divorce is a turning point, with decisions that will have a significant impact on people's lives. For this reason, divorce proceedings can be particularly complex, involving important property and family issues.
In order for the judge to rule on the spouses' claims, the parties need to provide evidence of their financial and family situation. In practice, however, this can be particularly problematic.
It is in this context of high value disputes that expertise is essential to ensure the good administration of justice and respect for fairness.
Financial expertise is justified in cases where the spouses' situation is complex and/or there is a lack of transparency regarding the reality and extent of one spouse's assets, which are often maintained in order to avoid maintenance obligations towards the other spouse.
As part of the financial claims relating to the consequences of divorce, a compensatory allowance may be requested. The amount is determined according to the needs of the spouse to whom it is paid and the resources of the spouse who owes it, taking into account the situation at the time of the divorce. A contribution to the maintenance and education of their minor children may also be requested.
This expertise must be requested at the provisional measures stage, so that a qualified professional can be appointed to draw up an estimated inventory of the spouses' assets and income, in accordance with article 202-1 of the Civil Code. The expert's report provides an objective basis for assessing the spouses' financial capacity in order to determine the amount of the claims. The cost of the expert's report is borne by the applicant for this measure or, in certain cases, by both parties.
One of the main challenges of this expertise is to detect the concealment of assets, which is often hidden behind opaque and complex or foreign structures. As part of their mission, the expert may be provided with all relevant documents, while respecting conflicting views, may be assisted by any expert of his choice if necessary, or may seek the necessary information abroad through an international request for assistance.
In practice, however, there are certain limits to financial expertise, such as banking secrecy. If the parties fail to provide information and documents, the judge in charge of supervising the expert can order them under penalty of law. The expert, and then the divorce judge, can then draw any consequences from the parties' behaviour.
In family matters, it is in the best interests of the children to minimise the harmful consequences of divorce and to ensure a degree of stability. Issues of parental authority, residence of the children and visiting and accommodation rights may be raised as family consequences in relation to common minor children.
In order to rule on these requests, a social investigation may be ordered. In this case, the designated qualified person may hear anyone they deem necessary, with the task of gathering all useful information on the situation of the family and each of the parents, as well as on the conditions in which the children live and are educated, in accordance with the provisions of article 204-7 of the Civil Code, which refers to articles 300 et seq. of the Civil Code. A psychological and/or psychiatric report on each member of the family may also be ordered, if necessary, as part of the divorce proceedings. A report is drawn up and submitted within a certain time limit.
If the health, safety, morals or education of a minor child is at risk, the Tutelaire Juge (guardian ad litem) may be called upon at the same time as the divorce by one of the spouses to order a measure of supervision or educational assistance for a specified period, in accordance with articles 317 et seq. of the Civil Code.
An investigation of the minor's personality and family environment may be ordered, as well as any other information measures that may be considered useful. Apsychological and/or psychiatric assessment of the familymay also be ordered, if necessary, the expert appointed being able to be assisted by a specialist of their choice. The report drawn up by the appointed professionals makes it possible to assess the situation and, if necessary, to recommend appropriate measures. The divorce judge generally follows the decisions of the tutelaire juge in order to avoid contradictory decisions, unless a new element has arisen in the meantime.
It should be noted that the Tutelaire Juge (Juge Tutélaire) can also order the same measures in a post-divorce context, if a new element arises, and in a non-marital context.
In this way, in the context of contentious divorce proceedings, the issues of expertise are crucial to a well-founded judicial decision on the claims of the spouses.
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.