Divorce

There are four routes open to separating couples, ranging from mutual consent to fault, via a request accepted or the alteration of the marital bond. There are bridges to help you move from one procedure to another.

The procedure begins with a petition presented on behalf of both spouses if they have decided to divorce by mutual consent.

Reform of divorce by mutual consent

From 1 January 2017 (Law no. 2016-1547 of 18 November 2016 on the modernisation of justice in the 21st century, published in the Journal Officiel), and subject to certain conditions, spouses wishing to divorce by mutual consent will no longer need to go through the Family Affairs Judge.

An agreement drawn up between the spouses and their respective lawyers can be drawn up when they agree on the breakdown of the marriage and its effects. The agreement must be filed with a notary.

However, when one of the spouses' children asks to be heard by the judge, the agreement must be submitted to the judge for approval.

The spouses do not have to state the reasons for the divorce.

They should contact their respective lawyers.

The lawyer will send a draft agreement to the spouse he is assisting by registered letter with acknowledgement of receipt. The draft agreement may not be signed by the spouses before the expiry of a 15-day cooling-off period from receipt. If one of the spouses signs the agreement before the 15-day period has expired, the agreement becomes null and void.

This agreement takes the form of a private document countersigned by each of the spouses' lawyers.

Filing of the agreement

The agreement must then be filed with a notary, who will keep a record of it.

Filing the agreement with a notary confers certainty and enforceability on the agreement, i.e. the agreement is immediately applicable.

Contentious divorce

Before a divorce on grounds of acceptance or fault: compulsory conciliation.

For the other three divorce procedures (divorce on the grounds of acceptance of the principle of separation, divorce on the grounds of definitive alteration of the marital bond, and divorce on the grounds of fault), the conciliation phase is compulsory.

As soon as the application for divorce is filed, the clerk's office summons the spouses to a conciliation hearing. The purpose of this is not to try to get the applicant to give up the idea of separating, but to try to get the spouses to agree on the principle of divorce and, above all, on its consequences, so that it can take place in the least conflictual way possible.

As in an amicable procedure, the judge hears each spouse separately, then hears them together, and finally asks their lawyers to join them.

At the conciliation hearing, the judge may suggest that the spouses meet with a mediator to find an amicable solution to their disagreements. Neither a judge nor an arbitrator, the mediator's role is to help them find solutions to some or all of the effects of their separation.

More often than not, this involves the arrangements to be put in place for the children. If the couple reach an agreement at the end of the mediation - which lasts a maximum of six months - they sign an agreement that the judge approves. Failing this, the judge makes the final decision.

Non-reconciliation order

At the end of the hearing, the judge issues a non-conciliation order. This decision states, if applicable, that the spouses agree on the principle of divorce and sets out the provisional measures for the duration of the proceedings: residence of the spouses, children, maintenance between the spouses and for the children, etc.

This is an essential stage, as these arrangements are often intended to become definitive. This is why it is so important for future ex-spouses to prepare for this interview in great detail.

Three months to file for divorce from your former spouse

From the date of the order, the spouse who filed the initial petition has three months in which to serve a writ of divorce on the other spouse. Once this period has elapsed, the spouse who did not initiate the separation may decide to continue the proceedings, on the understanding that the writ of summons (by either spouse) must be served no later than thirty months after the non-conciliation order, failing which the proceedings will come to an end.

Drawn up by the lawyer of the spouse initiating the second phase of the proceedings and served on the other spouse by a bailiff, the writ of divorce indicates the type of divorce chosen and includes a draft settlement of the spouses' property interests.

Divorce for fault

A divorce based on fault requires proof of what the other party is accused of.

The fault cited must be serious enough to make living together intolerable: infidelity, humiliation, denigration, violence, manifest disinterest, wasteful behaviour, etc. The person claiming it must prove it by producing written statements from friends or relatives; but he or she may not ask his or her children to testify.

The "attacked" spouse may in turn accuse the other spouse of misconduct, either to excuse his or her own faults, or to obtain a divorce with the plaintiff's fault. Depending on the case, the judge will either award the divorce to one of the spouses "exclusively" or "jointly". He may also refuse to grant a divorce if there is no proof or if he considers that the fault is not sufficiently serious.

Divorce accepted

This procedure is designed for couples who agree on the principle of separation but disagree on its consequences. Divorce by mutual consent is not suitable for them, as the joint petition must include details of the provisions agreed by the spouses.

Spouses prefer the courts to decide for them.

Before the judge, they do not have to state the reasons why they want to separate; the debate only concerns the effects of the divorce. As in other proceedings, they may enter into an agreement covering any aspect of the separation.

The judge will only rule on disagreements that persist.

Sometimes this "acceptance" occurs as early as the conciliation hearing; in this case, the spouses may file a joint petition or initial a procès-verbal of acceptance.

Divorce on grounds of permanent impairment of the marriage bond

This type of divorce allows one spouse to divorce the other even if he or she has nothing to reproach the other spouse for (no "fault" procedure), even if the other spouse is opposed to the divorce (refusal to accept the request). The procedure applies to couples who have not lived together for at least two years.

The time that elapses between the filing of the application and the summons is often sufficient to meet this condition.

The person initiating the proceedings must prove by all possible means that they are no longer living together.

The spouse who is the 'victim' of the proceedings may respond by filing for divorce on grounds of fault. If the application is rejected, the judge will grant a divorce on the grounds of marital breakdown, provided the conditions are met.

Early remarriage

Once divorced, either spouse is free to remarry immediately. In principle, a "waiting period" of three hundred days was imposed on the wife, to avoid delicate problems of presumption of paternity.

However, the Divorce Act and a 2005 ordinance removed all references to the waiting period from the Civil Code, leaving recent divorcees free to reorganise their lives as they saw fit.