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  • Couples who Separate: Both a Private and a Public Matter
  • Bertrand Fragonard, Lucie Gonzalez, and Céline Marc

When a couple separates, the impact on the expenditure and income of the individuals involved is considerable. How should the risk of that separation be covered? This stimulating way of seeing things reflects a change in mentalities concerning separations. Divorce and other forms of separation have become commonplace, and this trend has been accompanied by major changes in civil law, with the divorce reforms of 1975 and 2004 and the acts of 1970, 1993 and 2002 on parental authority. The object of the decisions handed down by family judges has thus shifted from the search for the cause of and “responsibility” (“fault”) for the separation to the question of how to sort out the consequences and organize the lives of individuals – parents and children – in the aftermath. This change in viewpoint is also to be found in sociological and economic research (Bonnet et al., 2015; Lambert, 2009).

Two ways of protecting against the negative financial consequences of separation can be envisaged: either leaving households to handle the separation as they see fit, or promoting public intervention.

Separation of unmarried parents is now more common than divorce

The article mainly examines divorce, for which the range of legal provisions is most extensive, and makes numerous references to alimony or “compensatory allowance” (prestation compensatoire). Yet separations of unmarried parents are now more frequent than divorces of parents with children (High Family Council, 2014), the context of the former being much less “protected” than that of the latter. In particular, fewer formal guidelines exist for transfers between couples in a consensual union or civil partnership than for those between divorcing spouses.

When couples are formed (or at any other moment in their existence), the rules on the management of the partners’ assets and their division in the event [End Page 479] of a separation can be organized under a marriage or civil partnership contract. The rules can provide for the specific protection of one of the partners (as with the “regime dotal” system of dowry management still common in some countries). In several countries, the share of “specific” marriage contracts is increasing at the expense of the default community of property regime – of somewhat unsophisticated design – covering the assets acquired during the marriage (Frémeaux and Leturcq, 2013). A recorded or certified agreement between partners is also possible, though much less widespread.

After a separation, “compensatory allowance” exists for married couples only. Where children are involved, court hearings to set child support payments are mandatory for divorcing spouses only. This raises the question of the creation of “parenting compensatory allowance”, which would be open to unmarried parents (Boisson and Wisnia-Weill, 2012) and have a narrower scope than “compensatory allowance”, whose level is determined using a wide range of criteria, each one constituting a reason or justification. “Parenting compensatory allowance” would be designed to offset losses in income following separation and attenuate differences in the parents’ situations resulting from the asymmetric investment in parenting, notably by recognizing each partner’s parenting time, which is often invisible. It could be awarded to unmarried couples with long-term unions and shared children. It could be seen as temporary assistance for returning to work if the financial consequences of the separation are considered reversible for the parent having consented to the greater parenting investment, or take a more consequential form for losses seen as lasting.

Has separation become an “insurable risk”?

Recourse to private insurance is also possible, either as a supplement or an alternative. But designing an insurance policy poses formidable problems. First of all, who signs the policy? The couple or a member of the couple seeking to protect themselves against the risks involved in a conflictual or penalizing separation? Secondly, which risks are insurable? It is technically possible to include coverage of the costs of separation proceedings in a legal protection policy. Covering the costs of the proceedings involved in recovering unpaid child support is more complex, as the risk extends over several years and is difficult to foresee. Coverage for unpaid child support itself is an even more difficult matter, the amounts involved being...

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