Divorce by mutual consent: in what circumstances is it appropriate?

Divorce by mutual consent: in what circumstances is it appropriate?

Le divorce by mutual consent In recent years, it has established itself as the preferred option for couples wishing to end their marriage amicably.

This procedure is largely taken out of the courts: it is based on an agreement drawn up by the lawyers and then filed with a notary, without the need to go before a judge.

Whilst this mechanism is appealing for its apparent simplicity, it is not, however, suitable for all situations. It is subject to a number of strict conditions and may, in some cases, prove less suitable than a contentious divorce.

A divorce by mutual consent is appropriate when the spouses are in complete agreement

Le amicable divorce is particularly relevant when the spouses reach a comprehensive agreement on the principle of the break-up and on all its consequences.

This relates in particular to the key aspects of divorce: the children’s place of residence, the alimony, the compensatory allowance, as well as the division of matrimonial property.

In this configuration, the divorce by mutual consent has several major advantages.

On the one hand, it allows the spouses to retain a degree of control over their separation.

Unlike the legal divorce, these are not decisions imposed by a judge, but rather solutions negotiated between the parties, with the help of their solicitors.

This generally helps to create a more peaceful atmosphere and reduces conflict.

Furthermore, the process is often quicker. Once an agreement has been reached and the contract drawn up, there is a fifteen-day cooling-off period before it is signed.

Furthermore, filing the documents with the notary makes the divorce legally enforceable within a relatively short period of time.

This speed stands in contrast to the sometimes lengthy delays in the courts.

Finally, costs can be better controlled. Although each spouse must now be represented by their own solicitor, the reduction in the length of proceedings often helps to keep fees down.

Thus, the divorce by mutual consent is particularly relevant in situations where the couple are engaged in constructive dialogue and wish to organise their separation in a secure yet consensual manner.

A solution to be ruled out in the event of disagreement or complexity

Conversely, the use of divorce by mutual consent becomes inappropriate as soon as there is any disagreement, however minor.

Indeed, this procedure requires unanimous agreement: failure to reach agreement on even a single point prevents it from being implemented.

In such cases, negotiations can drag on for several months, significantly delaying the granting of the divorce.

Paradoxically, a contentious divorce may therefore prove to be quicker. The judge can approve the points of agreement and settle any remaining disputes, thereby avoiding endless discussions.

This option is therefore appropriate when communication has broken down or the spouses’ interests are significantly at odds.

The presence of a property This shared aspect also adds to the complexity.

Indeed, the spouses must settle the matter of this property before divorcing by mutual consent, which often requires the involvement of a solicitor to draw up a deed of division of matrimonial property or an agreement on joint ownership.

However, these procedures can take time, particularly if a cash adjustment requires bank financing or if the property is put up for sale.

In such situations, the legal divorce may make it possible to separate the dissolution of the marriage from the division of assets, thereby offering greater flexibility.

Furthermore, certain assumptions rule out the divorce by mutual consent, particularly where a minor child requests a hearing or where a spouse is subject to protective measures.