February 2011

AND IT'S SUPPOSED TO BE LOVE

 

 

Before I say anything else, I would like to wish all of you a very happy and prosperous 2011!

Abbey Lincoln sang the song "And It's Supposed To Be Love" on the 1998 album Wholly Earth. She died about six months ago, on August 14th 2010. For years I have liked the albums of Billie Holiday, her model, and I came across this album a few years ago.

Sometimes the calendar fits the news, and there is nothing wrong with choosing a seasonal topic. For example, after Christmas comes Valentine's Day…

 

 

PARENTS BLOCK THE WEDDING OF THEIR ADULT SON IN FRANCE
A striking situation in late 2010 made the news in the French national media. A wedding between a French man and a Chinese woman, was supposed to be performed in Grenoble, a major city in the French Alps. This may sound like nothing unusual, but the ceremony was canceled because the French parents objected to it and started a legal proceeding as described in Article 173 of the French Civil Code, which gives parents the right to oppose a wedding. The provision may have been pertinent when it was introduced in 1803, but many observers have seriously questioned its use in the 21st century.

Aside from the obvious fact that the French parents dislike their would-be daughter-in-law, this provision follows a certain kind of French logic, which could have more benefits than disadvantages considering what it can do.

The article states: "le père, la mère, et, à défaut de père et de mère, les aïeuls et aïeules peuvent former opposition au mariage de leurs enfants et descendants, même majeurs". (The father, the mother, and, if the former are deceased, the grand-parents can oppose the wedding of their children and other descendants even when they are adults.)

The court system has given guidelines to the use of this law over the centuries. Under Napoleon it could be invoked in cases of inappropriate choice of spouse, while other reasons ranged from too-close blood relations to a national security threat. In the current case, the parents stated that the Chinese woman was a spy working for the Chinese government, which does fit the latter guideline.

However, there is good news for the groom-to-be: a court in Grenoble dismissed the charges and approved the wedding, which should be celebrated soon.

The French government can also oppose a match, for similar reasons. This is the main reason why, even today, any wedding must be publicly announced in the main hallway of the city hall where it will be performed. The publication des bans must be done at least two weeks before the wedding. This practice illustrates the French idea that the state cannot really trust the individual to make the right decisions so some authority (mainly the state) should have control over their decisions to protect their well-being, even against their will. This sounds downright wrong to people from America and many other countries. However, the legislation and court decisions have evolved over the past two centuries and the personal freedom of the French has tremendously expanded while the scope of the bureaucracy's activities has considerably decreased.

That said, the cultural attitude inspiring the original practice can be seen in many aspects of life, from the way taxes are calculated and paid (when it comes to URSSAF, for example) to how real estate is bought and sold through a notaire, and the way business is regulated when it comes to things like employees' working hours, the length of businesses' opening hours and the timing and duration of sales. The list could go on and on, but the point is that the French see the government as an ally who helps protect their personal freedom, while in the USA it is considered to be the enemy. This difference is often very difficult to grasp and accept, and it takes a long time to see the positive aspects of the French system. It requires trusting the French administration, which still has a terrible reputation that is quite undeserved.

 

 

FRENCH BUREAUCRACY - EFFICIENT OR DROWNING IN PAPERS
Learning that I have moved to a new office, a reader sent me this in an email: "I know, everything is a nightmare in Paris when it comes to documents, legal issues, bla, bla, bla, bla, bla. You know what I mean. It seems that days go by and at the end you feel like you are starting all over again. I don't know how people manage to do anything when they are working."

This is an easy theme to take up, the idea that France's major handicap is its bureaucracy and nothing gets done because it is cumbersome and inquisitorial. Aside from the fact that this situation has considerably evolved on many levels, the French administration is shrinking rapidly and the remaining civil servants use modern management methods. One detail illustrates the change: you can send an email to a civil servant in just about every division and get an answer by email within 24 hours - even from the préfectures, which represent the old-fashioned side of the French administration. So I look again and compare. Interestingly enough, I find that today's French bureaucracy is quite efficient, and I am not sure anymore that the average person in America spends less time dealing with the bureaucracy than a Frenchman does, despite the fact that the French administration is so much bigger than the American one.

 

 

REFUGEE STATUS AND GETTING INTO A SHELTER FOR HOMELESS PEOPLE
France, especially in Paris and the north, saw record levels of snow on the ground in November and December. In addition, the length of time it stayed on the ground was quite unheard of in recent decades. This upset the lives of just about everybody to some degree. Although we were not stranded in an airport, our family could not go to the USA for the Christmas vacation as we had planned.

Another aspect of the situation was that shelters for the homeless did not have enough room for all the people coming each night. The media mentioned a side consequence, which troubled many, including me - maybe because I deal with the population concerned. The prefects were told by the interior minister to enforce an unwritten rule that undocumented aliens in France, also known as illegal immigrants, should be refused so that more "suitable" people would have a chance to sleep in a bed.

The media coverage of the Romany, Afghani and Iraqi populations in France without immigration documents has been substantial, and I stay away from the heated debate as to whether they have the right to refugee status or should be deported to their home countries. I would just like to make two comments.

Under the terms of treaties France has signed, people who seek refuge here have the right of access to decent lodgings at minimal or no cost. In recent times, under the presidency of M. Sarkozy, the government has decided that emergency shelters are sufficient lodgings for such people. I find this policy shocking, especially for families, who cannot stay together because men and women are separated in the shelters; there is also the question of what exposure to the true homeless population does to refugee children.

I cannot accept such discrimination, which is fueled by an assumption that refugees are even "worse" people than the French homeless. It is a disgrace, given the moral values France stands for and has promoted since the 1789 revolution - the main one being that the law is applied equally to everyone in the same situation and discrimination is not permitted.

The government is supposed to help the weakest and our social system is designed (or used to be designed) to ensure that all who asked it would receive sufficient help which would meet the most basic needs in life, and securing a roof and a bed is one of them. In France even some quite conservative people share this point of view. Indeed, some of the strongest outcry over the treatment of refugees during the snowy weather came from people calling themselves Gaullists - adherents to Charles de Gaulle's largely rightist political views.

 

 

TAXES PAID BY AUTO-ENTREPRENEURS - MORE BAD NEWS
In addition to the fact that the auto-entrepreneur status may not last very long, mainly because it is too popular, there was a fiscal glitch last fall.

When the status was created, it was expressly stated in the law that the taxe professionnelle would be totally waived for auto-entrepreneurs. Then, to make a very complex issue simple, the taxe professionnelle - considered unfair because it penalized businesses with many employees - was replaced in the autumn with a new cotisation foncière des entreprises (CFE). According to the data I have access to, the fiscal burden stayed about the same, which in itself shows some incompetence.

For some obscure reason, however, the exemption for auto-entrepreneurs was not put in the law creating the new CFE tax. So auto-entrepreneurs received a CFE tax bill even if they had made no money or had just started their business. The outcry was immediate, and so loud that a new law was immediately passed to fix the problem. But a fair number of people were still in trouble because of actions by the collection agency, the Trésor Public.

Meanwhile, I can also confirm that the Paris préfecture continues to be just as rigid and unfair with the professionals who chose this status, and the only true way to get a more permanent immigration document is to sign off up at URSSAF and get the more traditional status of profession libérale, régime spécial - micro BNC.

So, at the end of the day, non-EU citizens interested in being self-employed in France should stay away from auto-entrepreneur status at all costs, unless they have a really excellent reason to adopt it.

 

 

WORK IS STILL BEING DONE ON THE WEBSITE
The website www.jeantaquet.com allows full access to all pages, including past and vintage columns. The changes to the site might look minimal right now but I am testing several designs before choosing the right one. The stickiest problem is that I know my issues by title and not by the month they are issued, since I have long worked on as many as three different issues simultaneously. But they have always been organized chronologically, and I cannot find another way that is feasible.

An additional complication is that the columns from the very first issue onward are grouped by theme, so that they form a guidebook, and therefore I do not want the website to be in competition with my ebook, The Insider Guide to Practical Answers for Living in France www.insiderparisguides.com/answers. The ebook also needs to be reviewed and reshaped after close to ten years of existence. At this point that can only be done once the predicament of the website presentation is fully addressed.

I would like to use the title of the column titles, which do not always closely reflect the content but at least indicate a theme and makes it easier to remember the topics addressed.

 

Best regards,

 

Jean TaquetJean

 

Q & A

RIGHT OF A FOREIGN UNWED MOTHER IN FRANCE AFTER SEPARATION

QUESTION
Why does France not advance with the times? I am an American and have lived in Paris for 30 years. I have two children with a French man. We have been together 13 years without any legal status, which is called concubinage. We are currently separating and it always amazes me that women who are not PACSed or married have absolutely no rights despite the fact that since 2006 over 50% of babies are born to couples out of wedlock (53% in 2009). (Source: Insee)

I understand that in France, money always passes vertically and not horizontally to protect the children. However, how is it that despite decades of sharing the same roof and raising children together, splitting the financial burden of the household, etc., unwed mothers have almost no rights when it comes time for a separation? How is it that my children (I have custody) and I are now being required to leave our home because my ex is the owner, even though this is the only home my children know? (I am aware that I am not entitled to some alimony, only the pension alimentaire, for my children only.) Why are unwed mothers not protected and what advice, if any, could you propose to women in my situation who undergo a non-amicable separation?

ANSWER
I am afraid the answer to your question will not deal with your true concerns or do anything to ease the legitimate pain you are experiencing. When the law is resorted to in a family situation and a court decision is needed, then the family has failed its mission and even its purpose. This is true anywhere in the world and is a fact that should not be overlooked in times of grief like you are experiencing now. My belief is that, whether the decision was handed down by a French or an American court, most likely you would consider the compensation - and specifically its financial aspect - as insufficient to cover the loss of 13 years of living together and raising children with someone.

Looking at the situation from your perspective, the answer you get in France is simply absolutely shocking. Yet it results simply from a combination of French culture and French law.

You are in this unfavorable situation and you need advice. In many ways your question contains the answer. Given the French legal system and the culture that sustains it, you should focus all your efforts on what the children should be entitled to. YES there should be some money paid for them to you as the guardian of minor children but there could be more. YES it might not last very long. YES you will have the impression that you have been totally cheated. In these situations the best advice can be summed up as "pick your fight."

In France, fighting for your own rights in your situation would be close to a total waste. It would mean huge, very expensive effort for a minor result, if any. The law is against you.

On the other hand, fighting for your children's rights should bear considerable fruit. You have an international family and you were not married, so you really need to think outside the box. For this, you must retain a lawyer who is specialized in international divorces but who can also be flexible enough to think beyond the normal issues of a divorce. Money is not the only form of compensation; receiving ownership of stocks, mutual funds or annuities, as well as real estate, could be a lot easier. It is all about control. Your ex-partner may question your ability to spend the child support money wisely. If it is dedicated to a purpose and you have no control over it, however, this could make him more generous. I know of cases where the father has given a Parisian apartment away to a child turning 18, or even bought one for the purpose, rather than give half its value to his ex-wife. Do not underestimate the bond the father has with his children.

I have often addressed issues related to marriage as well as to the pacte civil de solidarité (PACS). You mention that the number of births out of wedlock is high in France, but it is also high in the USA. Granted, the two situations are radically different. In the USA, society does not really accept unmarried couples and therefore it is expected that eventually a couple will get married. Therefore, a birth out of wedlock very often means a single mother is having a child alone. This is related to teen pregnancy, welfare and so on. In France, there has been a rather slow but constant decline in weddings being performed and a steady increase in PACSes being registered. Thus almost all the births out of wedlock in France are to established and recognized couples. France is not faced with the issue of teen pregnancy and single motherhood as it exists in the USA. Thus, your statement regarding this issue is inaccurate. I admit that when a PACS is dissolved, one partner may not get much more than in concubinage but the way couples are viewed with a PACS and without it is quite different and this does have an impact in the everyday life of the present and past partners.

You state that 53% of children are born out of wedlock (I do not dispute INSEE data) but what I would love to know is the share of children born out of wedlock AND outside a PACS? That would be a meaningful statistic, since it is clear that France does not regard PACS as a second-class form of marriage tailored for homosexuals, as it was once portrayed.

In 2009, 175,000 couples chose this status over marriage, and 95% of them were heterosexual. That was a 20% increase from 2008, which saw a 40% increase from 2007. There were two PACS for every three weddings in 2009, a year in which the number of weddings decreased by 3.5% from 2008.

France is way past the moral issues of whether it is wrong to have children out of wedlock or to live together without being married, mainly because there is a legal status that is a perfectly acceptable alternative. There is also a cultural aspect: many French people, men and women alike, do not like to make definitive commitments. This is true in many areas, and specially so in romantic relationships. My experience is that foreign partners, especially American ones, expect to get married when they have been living together for a while, and that they look at the cohabitation as a transitional period. The French partners are content with the existing status and see no point in envisioning any change. It often takes years before the French partners think about PACS or marriage. So I usually advise the foreign partners to address this issue clearly and make sure their expectations are known.

The bottom line is that the French judge is likely to think that, because you had the choice between marriage and PACS as an alternative to your situation since 1999, you effectively chose your current status and therefore he does not need to question it and can apply the rules as they are, regardless of how unfair it is from a human point of view. This is in effect what you are up against. In this case, French society believes the individual does not need to be protected, mainly because the initial relationship, the romantic tie with your partner, was not an uneven one. The truth can be somewhat different between a French and a foreign partner living in France, but that is not really taken into consideration.

The second major explanation of this situation is that French law and French judges differentiate between the mother of a minor child and the woman as companion, and this is true whether she is a spouse, a PACSed partner or in concubinage. The mother is entrusted with as much parental authority as the father, and when she has custody of the children, as in the vast majority of the cases, she is entrusted with the money needed to take care of the children, including the portion that the father owes to the children. This is called l'obligation d'aliments, which can be translated as the obligation to feed the children (Article 203 of the Code Civil).

So, in that respect, I believe France does much better than the USA in protecting the rights of the children and, by extension, of the mother. I would like to remind you that the Trésor Public will show no mercy should it need to collect unpaid child support, and the court system will imprison fathers who continue to refuse to pay. This is unheard of in the USA. Yes, these measures are only there because they protect the children, but they do benefit the mother of a minor child.

The companion, the woman, has a romantic relationship and is an adult. She is capable of making choices, of imposing some of her choices, of challenging her partner. Since there has always been an alternative to just living together, French law and French judges make their analysis of the situation this way:

  • 1 – This couple had the option of getting married (or, since 1999, to get PACSed).
  • 2 – They did not take this option.
  • 3 – Therefore this couple chose to have no legal ties between them and therefore they want to remain in the position of third party vis à vis one another.
  • 4 – We respect their choice and we treat them accordingly.

Always keep in mind that French judges rule according to what the law says and they have close to zero leeway to take unfair consequences into account in their application of the law. It is really sad that the children have to leave their home, but they have only been allowed to be there because the father wanted them to be there. Once the man as father steps back and the man as owner steps in, the owner has an absolute right to decide who lives in his property.

In the states that recognize common law marriage, the American judge looks at the situation and then states that the couple was never legally married, but after a certain number of years together, it is clear that they have adopted a married life and have indicated their intention to behave as if they were married. Therefore the analysis is then the separation of the parents is addressed almost as if they had been married because the judges down play the key difference that they were not married.

None of this does you any good when your life crumbles and you feel like everyone living in France is attacking you.

 

 

 

ISSUING A CARTE DE SÉJOUR BASED ON TIES WITH FRANCE

QUESTION
I am an American and I have lived in France for almost ten years, first as a student and then as a professional with the related status at the préfecture. The last time I went to renew my carte de séjour, the préfecture gave me a negative answer and asked me to leave the country. I was shocked. This is so unfair. About five years ago I fell in love with another foreigner, and it went as far as planning a wedding in his home country where I would have moved. Then I got pregnant almost four years ago and he left me when he learned about it. So I gave birth to a little girl, and all by myself I pulled myself out of the mess I was in. As a self-employed person the two years following the birth were awful, including from a business point of view. Since I hold a professional carte de séjour, the préfecture denied me a new card because I billed less than 4,000 euros in 2009.

Aside from the fact that I anchored my life in France many years ago, there is a new man in my life who has been very present in my daughter's life since her birth. After all these years, I want our relationship to be official. So now moving out of France is unthinkable for even better reasons, and this negative answer is breaking my heart. Until now I have not allowed him to move in with us, but if I PACSed him would it help my case? He is also American and holds a carte de résident. Can he become the father of my daughter?



ANSWER
The first answer is that a good man can come into one's life when he is least expected.

Now, regarding your immigration issue, the only way out of this bad situation for you is to obtain a carte de séjour based on your private life as the préfecture understands it - not just your romantic life, as the term carte de séjour mention vie privée might suggest - and it would be compatible with your professional status. But it is going to take a huge amount of work and an iron will to reverse the decision you received from the préfecture and once again obtain a carte de séjour, and it could take a long time.

Let me explain where you are right now, and why the carte de séjour mention vie privée is the only solution.



ILLEGAL STATUS MEANS GETTING A NEW VISA


Getting a negative answer from the préfecture with an order to leave France means you have lost the right to stay here. The only official way for you to obtain legal residency is to go back to the USA and ask for an immigration visa. But it is hard to know which one to apply for, since your business is not strong enough to be a good reason for the visa.

(As a reminder: there are eight categories of visa linked to a carte de séjour, with several subcategories for each. The categories are visitor, étudiant, salarié, commerçant/artisan, vie privée, compétences et talents, scientifique et artistique (visitor, student, employee, business/crafts, private life, expertise and talent, scientific and artistic.)



A REGULARIZATION PROCEDURE MEANS ACKNOWLEDGING ONE'S ILLEGAL STATUS


Since your situation meets none of the eight visa categories, the only viable solution is to stay in France, violating the préfecture's order - which is not a good start, to say the least, but you have no other choice. The private life visa category is based for the most part on provisions of the Code de l'Entrée et du Séjour des Étrangers et du Droit d'Asile (Article L. 313-11, paragraphs 1-13). None of them perfectly applies to your situation.

Parent of a French child
While paragraph 6 mentions being the parent of a French child, a person born in France of foreign parents is not automatically French: the request for French nationality cannot be made until the child is 13, about 10 years from now. So this is not a good solution.

Parent of a foreign child who has lived in France for five years
The provision that most closely matches your situation is one interpretation of paragraph 7. The provision is very confusingly drafted and hence somewhat difficult to use. In short, the foreigner must prove strong, lasting ties with France, with the proof depending on the nature of the ties. You would have to prove that you have had family ties in France for at least five years. Since your daughter was born in France, you would have a good chance of getting this card when she is five years old. This would mean waiting two years or so - still unacceptable, considerably less than paragraph 6 would require. To prepare the file for such a case, be very practical: create one small file per year, putting in it any documents strictly related to your daughter and her presence in France, such as daycare-center bills, kindergarten statements and medical visits. Create similar files for your presence in France, with things like copies of all your cartes de séjour, income tax statements, proof of medical coverage, utility bills, bank statements, pay slips and so on - anything that has a date, the name of the organization and your name and address.

Foreigners who have lived in France, legally or not, for more than ten years
Now, consider the intricacy of the préfecture procedures. Since 1997, a foreigner who has lived in France for ten years straight (fifteen years for someone who held student immigration status, as you did) is entitled to a private life carte de séjour. This 12Bis 3 provision was nixed about four years ago. Nevertheless, it is common knowledge that the préfecture will accept requests grounded on having lived a minimum of the previous ten years in France (the request must be made while the applicant is still living in France). In preparing such a file, the hardest task is to come up with enough documentation for each year, proving permanent residency in France. The fact that you held a carte de séjour for each of those years will make things considerably easier. So, you wait a few months until you reach the ten-year anniversary. To prepare the file, use the same method as above: create a small file for each year containing documents such as those listed above.

When you have the meeting at the préfecture to officially submit the request, you should present the request on two grounds: the length of your stay in France and the birth of your child in France, grounding the request on Article L. 313-11, paragraph 7. It is clear that this provision is open to interpretation and your case could be evaluated more leniently than the guidelines from the government would suggest.

One last thing - regarding your current partner - according to what you have said, there are no legal ties between the two of you and therefore your relationship cannot be used as grounds for requesting a carte de sojourn. Even if you were to get PACSed right away, the préfecture would demand five years of living together. It is impossible for him to be the father of your child: she has a birth father who has parental authority over her. This aspect of your life should be explained by a lawyer specialized in family law.

Nevertheless, anything you can put in your file showing how anchored your life is in France is good, so create a special folder pertaining to this relationship and how close he is to you and your daughter. Have him accompany you to the meeting at the préfecture when it is time to submit your request. Legally speaking he does not represent anything, but the civil servant can evaluate the depth of the relationship and maybe take it into account. There is nothing certain about this aspect of your case, but you have nothing to lose by doing this and you might gain quite a lot in terms of how the file is reviewed and interpreted.

DISCLAIMER
Please forward this message to all who would be interested in its contents. The information contained in this newsletter is intended as exclusively general information. Therefore, I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.