Concept of separation under Article 1439 of the Civil Code
Spouses are considered to be in separation either when they live apart with the intention of terminating their marital cohabitation, or when, although they continue to reside in the same family home, at least one of them has the intention to abstain from marital life and no longer behaves as a spouse, resulting in the disruption of the emotional bond between them and their estrangement.
When and how is a marriage dissolved in the case of divorce after two years of separation?
Article 1439 §3 of the Civil Code provides that if the spouses have been in continuous separation for at least two years, the breakdown of the marriage is irrebuttably presumed, and the divorce may be granted by court decision, even if the cause of the breakdown is attributable to the claimant. The completion of the two-year period is calculated at the time of the hearing of the action. The running of this period is not interrupted by short intervals aimed at reconciliation between the spouses.
Jurisdiction of the Court
The competent court is the Single-Member Court of First Instance within the territorial jurisdiction where the legal transaction was concluded or where the obligation is to be performed, introducing, within this framework, a special concurrent jurisdiction pursuant to Article 33 of the Code of Civil Procedure, which applies in parallel with the general concurrent jurisdiction based on the domicile of the defendant, as provided under Article 22 of the Code of Civil Procedure.