Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

Articles L. 213-1 et seq. of the Code of Civil Enforcement Procedures establish a simple and effective procedure for the payment of alimony claims, which, due to their crucial nature for the creditor's subsistence, must be free from all obstacles to recovery existing in the ordinary law procedure for the attachment of monetary claims and escape the influence of collective proceedings . Like the la …

Procedure exercised by creditor or public entity

Articles L. 213-1 et seq. of the Code of Civil Enforcement Procedures establish a simple and effective procedure for the payment of alimony claims, which, due to their crucial nature for the creditor's subsistence, must be free from all obstacles to recovery existing in the ordinary law procedure for the attachment of monetary claims and escape the influence of collective proceedings . Like the latter, the so-called direct payment procedure operates within the framework of triangular relationships between an alimony creditor, their debtor, and the garnishee. The latter may be the debtor of liquid and due sums to the alimony debtor, such as an employer or any custodian of funds. The procedure aims at the payment of alimony, but also, according to paragraph 3 of Article L. 213-1, at the recovery of the contribution to marital expenses provided for by Article 214 of the Civil Code, the life annuity provided for by Article 276, and the maintenance provided for by Article 342 of the same code .

Pursuant to Article L. 213-1, para. 1, the application for direct payment is admissible as soon as an installment of alimony has not been paid by its due date  and the creditor holds a writ of execution. No formal demand for payment is required . The writ of execution underlying the application may take the form of a judicial decision that has become enforceable, a convention approved by the court, an agreement by which the spouses mutually consent to divorce or legal separation by a private deed countersigned by lawyers, filed with a notary as provided in Article 229-1 of the Civil Code, a deed executed in authentic form by a notary, a convention made enforceable under the conditions set out in Article L. 582-2 of the Social Security Code, or a transaction or deed recording an agreement resulting from mediation, conciliation, or a participatory procedure, when countersigned by the lawyers of each party and bearing the enforceable formula by the registry of the competent court. The direct payment procedure applies to future installments of alimony, as well as to installments due for the six months preceding the notification of the direct payment application .

The request for direct payment of alimony is presented to the third party through a judicial commissioner , whose fees are borne by the debtor, without any advance being requested from the creditor for the implementation of the procedure . The creditor's request must include, on pain of invalidity, the name and domicile of the debtor, the statement of the writ of execution, and the breakdown of the amounts due . Within eight days following the creditor's request, the judicial commissioner proceeds with the notification of the request by registered letter with acknowledgment of receipt and simultaneously informs the debtor in the same manner , with the indication, on pain of invalidity of the direct payment request, of the breakdown of the amounts due in principal, interest, and costs, and the reminder of the provisions of Article R. 213-6. The third-party debtor is required to acknowledge receipt of the request within eight days following the notification, by a written statement specifying whether or not they are able to comply. This applies in the event of termination or suspension of their obligation towards the debtor of the alimony, particularly due to the cessation or suspension of remuneration or the closure of the debtor's account or insufficient funds in this account .

In the absence of such difficulties, upon notification of the request, the creditor becomes, without further procedure and with preference over all other creditors, the assignee of the amounts involved as they become due. The third party is required to pay these amounts directly to the beneficiary, according to the deadlines set by the writ of execution , at their domicile or residence . The third party to a direct payment procedure thus becomes, by the mere effect of the notification by the judicial commissioner, directly and personally obligated to settle the claimed amounts . Failure to pay the alimony due to the creditor exposes the third party to the fines provided for fifth-class contraventions .

The request for direct payment can be challenged in court without prejudice to the exercise of an action for the revision of alimony. Challenges are brought before the enforcement judge in whose jurisdiction the domicile of the alimony debtor is located. They do not suspend the obligation of the third party to pay the amounts due directly to the alimony creditor .

Furthermore, if a new decision modifies the amount of alimony or the terms of execution of the obligation, the request for direct payment is automatically modified accordingly from the notification of the amending decision made to the third party . Consequently, when a ruling changes the amount of alimony without expressly mentioning its retroactive nature, the modification takes effect automatically from the date of the amended decision .

The payment demand ceases to have effect if the creditor's judicial commissioner notifies the third party of the release by registered letter with acknowledgment of receipt. It also ends at the debtor's request, upon production of a certificate issued by a judicial commissioner attesting that a new judgment or a new agreement settling the effects of divorce or legal separation by mutual consent has eliminated the alimony, or noting that under legal provisions, the alimony is no longer due .

In the event of failure of the direct payment procedure, Article L. 161-3 of the Code of Civil Enforcement Procedures allows the creditor to turn to the public authority to recover the alimony on their behalf. The procedure follows the rules set by Law No 75-618 of 11 July 1975 on the public recovery of alimony and its implementing decree No 75-1339 of 31 December 1975. The creditor must hold the same writ of execution required by Article L. 213-1, submit their application to the Public Prosecutor at the Judicial Court in the jurisdiction where their domicile is located, and prove that they have effectively used one of the private law enforcement methods and that this recourse was unsuccessful, notably by producing a certificate from the clerk of the competent court or a judicial commissioner . If the Public Prosecutor accepts the application, they inform the creditor and notify this decision to the debtor, specifying the amounts subject to public recovery and indicating that the debtor can only discharge the debt to a public accountant . The Public Prosecutor then sends an enforceable statement against the debtor of the alimony to the departmental or, if applicable, regional director of public finances of their jurisdiction. This statement mentions the judgment that awarded the alimony and specifies, on one hand, the amount of installments due and unpaid by the debtor for the six months preceding the date of the public recovery request and, on the other hand, the amount of installments due or to become due from that same date. It also shows the amount of recovery costs collected for the benefit of the Treasury . The departmental or, if applicable, regional director of public finances assigned to the enforceable statement finally entrusts it for recovery to the public accountant of the debtor's domicile or residence . For the amounts they are tasked with recovering, the public accountant is subrogated in the actions and guarantees available to the creditor for the recovery of their alimony . The recovery is carried out according to the procedures applicable to direct contributions. The amount of the sums due is increased by 10% for the benefit of the Treasury as recovery costs .

Finally, the organizations and services responsible for providing family benefits are authorized by Article L. 581-1 of the Social Security Code to assist in the recovery of claims due for child support. The mechanism involves, when one parent completely or partially fails to pay child support, the granting of a family support allowance or a differential allowance, as the case may be, as an advance on child support. The family benefits organization is then subrogated to the rights of the creditor, up to the amount of the family support allowance or the child support claim if it is lower. The recovery of the claim from the debtor is then carried out under conditions similar to those for the public recovery of child support.

See Cass. com., 8 October 2003, LawLex202100002680JBJ, highlighting that the claim arising from alimony, which constitutes a personal debt of the debtor subject to insolvency proceedings, must be paid without needing to be declared in the liabilities, from the income that the debtor retains control over, or be recovered through the direct payment procedure or public recovery of alimony.

According to which “[a]ny child whose paternal filiation is not legally established may claim maintenance from the person who had relations with their mother during the legal period of conception.”

Cass. 1re civ., 24 October 2000, LawLex202300009945JBJ.

CA Bordeaux, 26 January 2015, LawLex202300009980JBJ.

Decree No 75-1339 of 31 December 1975, Art. 2.

Decree No 75-1339 of 31 December 1975, Art. 4.

Cass. 2e civ., 10 February 1988, LawLex202300009844JBJ, noting that the debtor of alimony set by a judicial decision that had become enforceable had only paid installments on the amounts due and remained liable for an outstanding and payable balance.

Decree No 75-1339 of 31 December 1975, Art. 6.

Decree No 75-1339 of 31 December 1975, Art. 11.

Article L. 75-618 of 11 July 1975, Art. 6.

Article L. 75-618 of 11 July 1975, Art. 7.

Cass. 2e civ., 24 February 2005, LawLex202300003939JBJ.

CPC exéc., Art. L. 213-4, paras. 1 and 2.  Reiterating the six-month limitation, Cass. 2e civ., 22 October 2009, LawLex202300003940JBJ.

CA Douai, 20 October 2022, LawLex202300009797JBJ, holding that in the absence of notification of a direct payment request to the third party by registered letter with acknowledgment of receipt, no payment can be claimed from them for the alimony owed by the debtor.

5. Civil Enforcement Procedures

124. Procedure exercised by creditor or public entity

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124. Procedure exercised by creditor or public entity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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