On 17 May 11 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first civil chamber, decree no. 552 of 17 May 2011) on behalf of Mr Jean−Jacques C., raising the conformity of the Article 274 of the Civil Code with the rights and freedoms guaranteed by the Constitution.
THE CONSTITUTIONAL COUNCIL,
Having regard to the Constitution;
Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;
Having regard to the Civil Code;
Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;
Having regard to the observations of the Prime Minister, registered on 8 June 2011;
Having regard to the observations submitted for the applicant by SCP Jean−Alain Blanc and Jérôme Rousseau, Attorney at the Conseil d'État and the Cour de Cassation, and by Muriel Gestas Esq., Attorney at the Draguignan bar, registered on 23 June 2011;
Having regard to the documents produced and appended to the case files;
Having heard Jérôme Rousseau Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 28 June 2011;
Having heard the Rapporteur;
Considering that Article 274 of the Civil Code specifies the procedures according to which the family courts may rule that alimony is to be implemented on capital; that paragraph 2 provides for the "Allocation of property for ownership or of a right of use, dwelling or usufruct, temporary or for life, the judgment operating a forced transfer in favour of the creditor. However, the consent of the debtor spouse is required to allocate the ownership of property which he or she received by succession or gift";
Considering that, according to the applicant, these provisions violate Article 17 of the 1789 Declaration of the Rights of Man and the Citizen on the grounds that they permit the court to allocate involuntarily an asset owned by a obligor who is ordered to pay alimony;
Considering that property is included under the human rights enshrined by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property pursuant to that Article, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on its exercise must be justified by a reason of general interest and be proportionate with the objective pursued;
Considering that it is for the legislator which has jurisdiction, pursuant to Article 34 of the Constitution, to determine the fundamental rules governing systems of property, real rights and civil and commercial obligations, to determine the procedures according to which the rights of creditors and debtors must be reconciled in order to permit compliance with civil and commercial obligations; that involuntarily enforcement on the assets of the debtor is one of the measures that seeks to ensure this reconciliation;
Considering in the first place that pursuant to the second subparagraph of Article 270 of the Civil Code, alimony is "intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective ways of living"; that Article 271 provides that this payment be determined by the court according to the needs of the spouse to whom it is paid and to the means of the other; that the allocation by the court ruling on the divorce of an asset owned by one of the spouses has the objective of ensuring the payment of the debt owed by that spouse to the other spouse as alimony; that it amounts to a means of payment for an obligation determined by the courts; that it follows that, whilst the involuntary allocation of an asset as alimony results in the obligor being deprived of the ownership of that asset, this does not fall within the scope of Article 17 of the 1789 Declaration;
Considering secondly that, on the one hand, in permitting involuntary allocation pursuant to Article 274(2), the legislator sought to facilitate the establishment of capital in order to regulate the pecuniary effects of the divorce at the time of the decree; that the legislator also sought to guarantee the payment of alimony; that the objective pursued of guaranteeing the protection of the spouse whose financial situation is less favourable and of limiting as far as possible difficulties and disputes after the issue of a decree of divorce constitutes a reason of general interest;
Considering that, on the other hand, involuntary allocation is ordered by the court that determines the amount of alimony; that the parties are able to discuss the value of the asset allocated in person before the court; that according to the second phrase of Article 274(2) of the Civil Code, the consent of the debtor spouse is required to allocate the ownership of property which he or she received by succession or gift;
Considering however that Article 274(1) of the Civil Code also provides that alimony in capital may be implemented by way of the payment of a sum of money, the divorce judgment being made subject to the establishing of guarantees; that the violation of the right of ownership resulting from involuntary allocation pursuant to subparagraph 2 of this Article cannot be regarded as a measure that is proportional with the goal of general interest pursued unless it amounts to an ancillary means of implementing the alimony in capital; that consequently, it should only be ordered by the court where, having regard to the circumstances of the case, the procedures specified under subparagraph 1 do not appear to be sufficient in order to guarantee the payment of alimony; that, subject to this reservation, the involuntary allocation of an asset as alimony does not violate Article 2 of the 1789 Declaration;
Considering that Article 274(2) of the Civil Code does not violate any right or freedom guaranteed by the Constitution,
Article 1.- Subject to the reservation set out in recital 8, Article 274(2) of the Civil Code is constitutional.
Article 2..- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23 -11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 12 July 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 13 July 2011.
Journal officiel of 14 July 2011, p 12250 (@ 83)