Divorce by mutual consent of contentious divorce
We’ve got 2 types of divorces :
Divorce for fault
In the event of a serious or renewed violation of the duties and obligations of marriage which renders intolerable the maintenance of the common life, one of the spouses can apply for the divorce for fault .
Divorce for adultery or violence
The violations in question may be constituted in particular in cases of violence (insults, bad treatment)
or adultery (even if it is no longer a systematic cause of divorce).
This type of procedure is often long, conflictive and complex . The choice of the procedure will be done in view of the elements brought in during the appointment with the Attorney .
In this type of divorce, the divorce petition must be lodged with the High Court on which the family residence depends, or, if the spouses live separately at the time of the petition , the criteria of choice is the eventual residence of the spouse living with the children of the couple .
Once the subpoena’s has been sent , the Family Court Judge will set a date for an attempt of conciliation prior to the commencement of the judicial proceedings. During this conciliation, the judge will summon the spouses to try to reconcile them. The spouses will be received first separately, then together. Then the attorneys of each spouse attend the hearing .
If the spouses are not reconciled at the hearing, the judge will take the necessary interim measures for the life of the spouses and children during the divorce proceedings. These measures include:
Fixation of a possible mediation .
The terms of the separate residence.
Fixation of allimonies
Attribution of provisional allocation of the enjoyment of the housing to one of the spouses
Liquidation of the matrimonial regime and property rights
At the end of this hearing, the judge will issue a non-conciliation order, which will allow the commencement of the proceeding itself. The procedure is then introduced by a subpoena by the request of a spouse, or even by joint application if the spouses have agreed on this point.
The document instituting proceedings must necessarily include a proposal for the settlement of the pecuniary and patrimonial interests of the spouses.
Divorce by mutual consent without judge
Divorce by mutual consent is envisaged when the spouses find agreement on the principle of the end of their marriage and on the overall effects of the divorce. Spouses no longer need to go through the JAF since 1 January 2017 unless a child of the spouses asks to be heard by the judge. An agreement between the spouses and their respective lawyer may be drafted. The agreement must be deposited with a notary.
The application can be made if the spouses agree on the divorce and all its effects (division of property, parental authority, alimony, compensatory allowance). No minimum marriage time is required. The spouses do not have to disclose the reasons for the divorce. They must contact their respective lawyer.
The lawyer sends to the husband that he assist, by registered letter with acknowledgment of receipt, a draft convention. This project can not be signed by the spouses before the expiry of a cooling-off period of 15 days from receipt.
If one of the spouses signs the agreement before the 15-day period, the agreement becomes void. This agreement takes the form of a private deed countersigned by each of the lawyers of the spouses. The agreement shall be transmitted to the notary within 7 days of the date of signature of the agreement.
The notary checks whether the mandatory elements appear in the agreement, and whether the 15-day cooling-off period has been respected. The deposit of the agreement with the notary makes it possible to confer on the agreement date certain and enforceable, that is to say that the agreement is applicable immediately. However, spouses may stipulate in the agreement that the consequences of the divorce take effect on a deferred date.
However, it will not be possible to divorce by mutual consent without a judge when:
- The minor child asks to be heard by the judge;
- One of the spouses is placed under one of the protective regimes provided in the Chapter II of Title XI of the Civil Code (curatorship, guardianship, safeguard of justice)
In the event of failure of the procedure, the divorce becomes litigious, a judge will have to decide the disagreements of the spouses.
This mode of divorce is the most advisable insofar as it is fast and therefore less expensive. However, it requires good understanding between the spouses on the principle of divorce and on these consequences. Otherwise, it will be better to turn to a mode of divorce that allows the judge to intervene to reconcile the parties.