NEW FAMILY LAW

NOTE SUR LA REFORME DU DROIT DE LA FAMILLE – LOI 4800-2021

NOTE ON THE REFORM OF FAMILY LAW

AND THE RELATIONSHIPS BETWEEN CHILDREN AND THEIR PARENTS

The object of the new law in the field of family law (4800/2021) is the reform of the relations between parents and their children after the break of the common life or after the divorce, the annulment of the marriage or the dissolution of the cohabitation agreement. (the equivalent of the French pacs). With regard to decisions concerning the life of children and the interruption of the public, the law favors agreement between parents. Appeal to the court should remain an emergency (see articles 1141 par. 2, 1512, 1514, 1519 of the civil code). With this reasoning, it is foreseen that the consensual divorce is now possible with a joint digital declaration of the spouses.

Regarding relations with children, the amendments to the law concern articles 1511-1520 and 1532 of the civil code. The new provisions provide for joint parental care which is exceptionally exercised by a single parent. Children must continue to have regular and real communication with both parents. In case the exercise of parental responsibility is regulated by the court, the court should respect the equality between the parents. It cannot discriminate on grounds of gender, sexual orientation, race, language, religion, political or other beliefs, nationality, origin or affiliation, national or social or property criteria. Both parents should make every effort to find mutually acceptable solutions.

In the same spirit, it is defined that the duties that are intertwined with parental authority are exercised jointly and equally by both parents. The exercise of these duties is exceptionally regulated by the court in case one of the parents is indifferent or does not cooperate with the other parent or the parents cannot agree between themselves or the decision is against the best interest of the child. In these cases, the parents can appeal to mediation and, if no common solution is found, they can appeal to the court, which will make the final decision.

The duration of the agreements or the validity of the court decision is two (2) years. At the end of this period, the agreement may be renewed or revised. The same applies to the court decision.

For children born to parents who are not married or who have entered into a cohabitation agreement (pacs), parental responsibility is exercised by the mother. However, in case the father acknowledged paternity or paternity was recognized by a court decision and the father did not oppose the decision, parental responsibility is exercised by both parents jointly.

According to the new provisions of Article 1519 of the Civil Code, important aspects of parental responsibility are regulated by law. More specifically, when parental responsibility is exercised by only one parent, decisions concerning the child’s name, religion, health matters, except for current matters and matters of an urgent nature, as well as decisions concerning his education which are decisive for the future of the child, are received by both parents. In order to change the child’s place of residence, the written agreement of the parents or a court decision is required. The court may order any appropriate measure. Both parents have the right to request and receive information about their children and their assets.

According to the provisions of article 1520 of the Civil Code, the parent who does not live with the child has the right and at the same time the obligation to communicate with the child and meet him. The exclusion or limitation of this right is possible only for extremely serious reasons, especially when the parent has been deemed incapable of exercising the right of contact and visitation. In order to assess and establish the inability to fulfill his obligations, the court may order any appropriate measure, in particular a detailed report drawn up by a social worker, psychiatrist or psychotherapist.

Parents do not have the right to prevent the child from communicating with his parents, grandparents or brothers and sisters, unless there is a justified reason. Parents do not have the right to also prevent the child from communicating with third parties who have developed a social-emotional relationship of a family nature with him, provided that this communication is in the best interest of the child. Issues concerning communication are resolved by written agreement of the parents or a court decision. In case of unfair or abusive exercise of the right of communication by one of the parents, the other parent can ask the court to reform the terms of communication.

Finally, the new text of article 1532 of the Civil Code provides indicative cases of abusive exercise of parental care, such as a) violation of the decisions or provisions of the judicial authorities regarding communication with the child or the agreement of the parents on the exercise of parental care, b) disrupting the child’s emotional relationship with the other parent or his family and causing a rupture of the child’s relationship with them, c) the violation of the terms of the parents’ agreement or the court order by the entitled parent regarding the child’s communication with the parent with whom he does not live d) the refusal of the parent to pay the child support awarded by the court e) the conviction of the parent by a final court decision for domestic violence or for crimes against sexual freedom or crimes of economic exploitation of reproductive life. In these cases, the court may revoke the exercise of parental care or custody from the parent found guilty, in whole or in part, and assign it exclusively to the other parent, as well as order any appropriate measure to safeguard the interest’s children. The court may also assign actual custody of the child in whole or in part to a third person or appoint a guardian.

In extremely urgent cases where there is an immediate risk to the child’s health, the public prosecutor can order any appropriate measure for his protection for a period of 90 days, with the possibility of a justified extension of this period for another 90 days.