DIVORCE: EVERYTHING YOU NEED TO KNOW

Divorce: everything you need to know

Certain situations lead to the desire to end a marriage. Depending on the state of mind in which the divorce is sought, there are several procedures.

In a divorce, the spouses end their marriage and settle all the consequences. Depending on the form of divorce they wish to pursue, the procedure will not be the same.

How to start divorce proceedings (Divorce: everything you need to know)

Whatever divorce procedure you choose, the application always follows the same principle.

The procedure always begins with the appointment of a lawyer.

If the spouses choose the amicable procedure, they can no longer be represented by the same lawyer since the law came into force in 2017. In all cases, the parties will be required to be assisted by a separate lawyer.

To officially launch the proceedings, the lawyer will draw up a writ of summons or an agreement (depending on the form of divorce).

The summons is issued by a court commissioner. This initiates the legal proceedings.

The agreement is drawn up by the lawyers and the parties. It is then filed with the notary to give it enforceability and make the divorce official.

Is it possible to divorce without a lawyer (Divorce: everything you need to know)

From 2017, Divorce by mutual consent makes it possible to avoid recourse to a family court judge. However, this does not mean that a lawyer is no longer required.

Whatever divorce procedure is chosen, the parties must each be assisted by a lawyer.

The different types of divorce (Divorce: everything you need to know)

There are several divorce procedures.

The parties agree on the principle of divorce and its consequences. In this case, divorce by mutual consent applies.

The spouses agree on the principle of divorce but not on the conditions. In this case, the agreed divorce procedure applies.

In other cases, where the spouses do not agree on the principle of divorce or its consequences, for example, there are divorce proceedings for misconduct or permanent impairment of the marital bond.

Finally, there is legal separation, which should be distinguished from divorce proceedings proper.

I.- Procedure for divorce by mutual consent (Divorce: everything you need to know on the subject)

This procedure is very popular because it is the quickest and least expensive.

But she asks that the spouses agree on the divorce and all that it entails.

This procedure is known as the "amicable procedure". It is chosen when both spouses agree on the divorce and its consequences.

With the help of their lawyers, the spouses will draw up an agreement that will govern the effects of the divorce. In other words, the division of property, the fate of the family home, the determination of the compensatory allowance if there is one, custody of the children, etc.

The agreement takes the form of a private deed.

Simplified divorce procedure

The procedure is simplified because the family court judge is no longer involved. It is also for this reason that the spouses must be assisted by two separate lawyers: to maintain fairness between the spouses.

Before signing the agreement, the spouses must wait a cooling-off period of 15 days from receipt. The agreement is sent to the notary within 7 days of signature.

Once completed, the agreement will be filed by the lawyers with the notary, who will in turn file it with the minutes to give it enforceability within 15 days.

The notary will also check that the agreement respects the interests of each of the former spouses.

However, if the spouses have children and one or more of them wish to be heard, the procedure becomes judicial and takes place before the family affairs judge.

In this case, the agreement does not take the form of a private document.

In this case, the spouses may be represented by the same lawyer, as it is the judge who will ensure that fairness between the spouses is respected.

The lawyer will file the divorce petition with the TGI on which the spouses depend. The spouses will be summoned to a hearing where the judge will hear the spouses one by one, alone and then together.

It is the family court judge who will approve the agreement and give it enforceability by homologating it after hearing the child.

Once the judge has pronounced the divorce, only an appeal to the Supreme Court is possible within 15 days of the divorce (no appeal procedure). Only if the judge refuses to approve the agreement may the spouses appeal.

II - Fault-based divorce proceedings (Divorce: everything you need to know on the subject)

A spouse who applies for a divorce on grounds of fault must invoke "facts constituting a serious or repeated breach of the duties and obligations of marriage attributable to his or her spouse and making it intolerable to continue living together", article 242 of the Civil Code.

It is up to the claimant spouse to prove the facts, which may be :

-Domestic violence ;

-Non-compliance with support and assistance obligations arising from the marriage;

-Abandonment of the marital home;

Procedure :

Stage 1: the summons for the purposes of determining provisional measures

This stage is compulsory and takes place after the summons has been served.

The family affairs judge will meet with the spouses and try to reconcile them, in a sort of mediation procedure.

There will be three interviews:

-one for each spouse separately,

-an interview with both spouses and their lawyers.

Stage 2: Divorce submissions

The order setting out the provisional measures will enable the claimant spouse to issue a writ of summons.

During the proceedings before the judge, the spouses may at any time change the legal basis of the divorce and request, for example, divorce by acceptance of the break-up or by mutual consent. However, once the request to change the legal basis has been accepted by the judge, it is no longer possible to revert to the first legal basis in the event of an appeal.

Stage 3: The judge's decision.

After examining the application and the evidence, the judge will make a decision.

The judge may consider that the grounds put forward do not constitute divorce for fault and therefore reject the application.

Conversely, the court may grant a divorce for fault, with one spouse being solely at fault or both spouses being jointly at fault.

The innocent spouse may claim damages if the divorce is granted solely against his or her ex-spouse.

The judgment will set out all the effects of the divorce, including the compensatory allowance, the consequences for the children, etc.

The lawyers will be responsible for recording the divorce in the civil register.

II - Divorce proceedings for permanent alteration of the marriage bond (Divorce: everything you need to know)

There must have been a voluntary cessation of cohabitation for at least two years from the date of cessation until the summons.

Procedure :

The procedure is virtually identical to that for a fault-based divorce.

Step 1: Court action

Stage 2: interim measures

Stage 3: Divorce decree

The two-year period ends on the date of the writ of summons. It is therefore essential that the 2-year period is reached before the summons is served, otherwise this last condition is not admissible on this basis.

If the time limit is respected and the separation is more than two years old at the time of the writ, the divorce is granted.

Although the divorce has been granted, the judge will have to set out the effects of the divorce in the divorce agreement.

III - Divorce by acceptance of the principle of marriage breakdown (Divorce: everything you need to know on the subject)

In this situation, the spouses agree to divorce but not on the consequences.

The procedure is always carried out in the same way as the other contentious procedures (divorce for fault and for definitive alteration of the marital bond).

Then there is the summons to appear before the court, the provisional measures phase by the family affairs judge (where the judge will try to reconcile the spouses, otherwise he will draw up the order setting out the provisional measures).

It is after this phase that the spouses will choose this type of divorce.

The judge will then rule on the consequences of the divorce and determine the compensatory allowance, the division of property and custody of the children.

IV - Special case: legal separation

This is not a divorce procedure. In this case, the couple prefers to separate (de corps) and no longer live together while remaining married.

This is a procedure that can be chosen in the hope that the relationship between the spouses will calm down and become normal again.

The procedure is the same as for legal divorces.

A lawyer is therefore required to initiate the procedure. Legal separation may be by mutual consent, for fault or for definitive alteration of the marital bond.

The application will then be lodged with the family affairs judge, followed by a conciliation phase with an order and finally a decision by the judge.

As a result of the legal separation, when the judge pronounces his judgment, he will set out all the effects of the legal separation.
The spouses therefore remain married, and all the obligations associated with marriage continue. The only thing that changes is that the spouses are authorised to stop living together.

Legal separation necessarily entails the separation of the spouses' assets. Their assets must therefore be liquidated. Any assets that the spouses subsequently own will be attached to their personal assets.

There is no dissolution of the marriage, so compensatory allowance does not apply. However, the judge may award maintenance.

V.- How long do divorce proceedings take (Divorce: everything you need to know)

The rules governing time limits differ depending on whether the divorce is by mutual consent or by court order.

For the procedure by mutual consentIf the children wish to be heard, the procedure will take longer. If the children wish to be heard by a judge, the procedure will take longer. However, there is no conciliation phase. In all cases, divorce by mutual consent is shorter than judicial divorce.

It appears that this form of divorce can take from 1 month to 3 months depending on the complexity of the divorce and the liquidation of assets.

For other divorces (by acceptance of the principle of marriage breakdown, by definitive alteration of the marital bond and for fault), the time limits are much longer.

There are many overlapping deadlines:

-. a lawyer,

-subpoena,

-. hearing before the family affairs judge

-and divorce decree.

All of these steps mean that the lead time is relatively long (around two years).

This varies according to the divorce procedure chosen:

-Divorce by acceptance of the principle of the breakdown of the marriage is the shortest of the contentious divorces because the spouses agree to divorce; the period is often less than two years.

-. Divorces for fault and for definitive alteration of the marital bond are the longest because they are cumbersome procedures. Proceedings for permanent alteration of the marital bond require at least two years of cessation of cohabitation, which means a minimum period of two years.

For all contentious divorces, the time taken also depends on the judges and their workload, but also on the lawyers.

VI - Tax and divorce: how it works (Divorce: everything you need to know)

Divorce puts an end to the joint taxation of the spouses. The starting point for separate taxation is 1 January of the year in which the spouses were authorised to have separate residences.

Each spouse must then file his or her own tax return.

Each declaration shall bear :

-. On the spouse's personal income for the whole year: wages and salaries, pensions and life annuities, profits (BIC, BNC, BA), remuneration paid to the managers and partners of certain companies;

-. And on the share of joint income due to him or her in respect of that same year, which concerns income and profits other than those mentioned above, such as income from property. In principle, this income is shared equally between each spouse.

As far as the family is concerned, tax benefits are awarded to the person who is responsible for the upkeep of the children. The increase in the family allowance will be different depending on whether or not the child is in alternating custody. Support payments cannot be deducted if the child is in alternating custody.

Special tax treatment is applied to the payment of compensatory benefits.

VII - What documents are required for this procedure (Divorce: everything you need to know)

The list of documents to be provided is longer for a contentious divorce than for a divorce by mutual consent.

Mutual consent :

-. The family record book;

-. Full copy of the marriage certificate less than three months old;

-. Transcription of the marriage certificate by the Service central d'état civil de Nantes if the marriage was celebrated abroad;

-. Full copies of the birth certificates of both French spouses, less than three months old;

-. Birth certificate, less than six months old, accompanied by an official translation less than one year old if you live in France and are a foreign national;

-. Full copies of the children's birth certificates, less than three months old;

-. marriage contract;

-. Identity papers and two health cards;

-. Last three payslips or ASSEDICS statements;

-. Last tax assessment;

-. Proof of address less than three months old;

-. Proof of credit, if any (consumer credit + mortgages);

-. Deeds of sale or purchase of property, where applicable.

Other contentious divorces :

-. The family record book;

-. Marriage certificate less than three months old. Photocopy of the transcription of the marriage certificate from the Service central d'état civil de Nantes if the marriage was celebrated abroad;

-. Full copies of the birth certificates of both French spouses, less than three months old;

-. Birth certificate, less than six months old, accompanied by an official translation less than one year old if you live in France and are a foreign national;

-. Full copies of the children's birth certificates, less than three months old;

-. Photocopy of the marriage contract;

-. Photocopies of two identity documents and two health insurance cards;

-. Three most recent payslips or ASSEDICS statements;

-. Last tax assessment;

-. Proof of address less than three months old;

-. Proof of credit, if any (consumer credit + mortgages);

-. Deeds of sale or purchase of property, where applicable;

-. Contact details for pension funds ;

-. Amount and origin of various accounts (current accounts, Livret A passbook accounts, etc.) ;

-. List of donations and life insurance policies taken out.

VIII - Can divorce proceedings be annulled?

Divorce proceedings can be halted at any time before the final decision is handed down by the judge.

To do this, you must send a registered letter with acknowledgement of receipt to the family affairs judge. The procedure ends as soon as the judge receives the letter.

If new divorce proceedings are subsequently initiated, the grounds invoked in the first proceedings can no longer be invoked in the second.

On the other hand, it is possible to appeal against a divorce decision. This is the case if one of the spouses intends to contest the judgment of the court of first instance. The appeal period is one month following the judgment, and this appeal may be appealed to the Supreme Court within two months of the appeal decision.

As for divorce by mutual consent, the time limits for appeals and appeals on appeal are shorter, at 15 days for both.