Getting divorce in France: Different divorce procedures
To the four existing divorce proceedings, a law that came into force on 1 January 2017 added a fifth: divorce by mutual contractual agreement, that is to say without a judge.
1st type - Divorce by mutual contractual consent (without a judge)
The bill to modernize the justice of the XXI century dated November 2016, 18th instituted divorce amicably without a judge. Thus, from January 1, 2017, spouses who opt for a divorce by mutual consent no longer pass before the judge. The divorce agreement is now countersigned by the lawyer of each of the two parties (it is impossible to share the same lawyer). It records point by point all the legal effects of separation.
The spouses have a withdrawal period of fifteen days before signing the agreement. It is then placed at the minutes of a notaire who checks compliance with formal requirements and ensures that the draft agreement has not been signed before the expiry of the cooling-off period. This deposit gives effect to the agreement by giving it a certain date and enforceability .
Proceedings in process on 1 January 2017 remain judicial if the request for divorce by mutual consent has been filed before that date.
2nd type - Divorce by mutual legal consent
The new procedure of divorce by mutual contractual agreement is excluded if one of the minor children of the couple asks to exercise its right to be heard by the judge. In this case, the proceedings remain judicial, the agreement is submitted to the judge for approval.
In this procedure the spouses act together. They must agree on a draft convention that resolves all the consequences of the divorce: personal and patrimonial (residence of children, alimony, compensatory allowance, division of property and debts, etc.).
Only one pass before the judge is sufficient (unless the judge refuses to homologate the convention). The spouses can share the same lawyer.
If one of the spouses is the object of a protective measure (guardianship or curatorship in particular), divorce by mutual consent is forbidden.
3rd type - Divorce on the basis that both spouses accept that the marriage has broken down
The judge checks that both spouses have freely given their consent. The judge then ensure that each spouse freely gave his agreement. The judge pronounces the divorce and rules on the consequences.
4rd type - Divorce following irrevocable damage to the conjugal bond
Only one spouse can apply for divorce when the conjugal bond has been irrevocably damaged. This is the case if the spouses live apart for at least two years. It is the judge who pronounces the divorce and rules on the consequences.
5th type - Contested or hostile divorce
One spouse accuses the other of serious or repeated breach of the duties and obligations of marriage that have made continued cohabitation impossible. The judge declares the spouses divorced and rules on the consequences. In order to encourage spouses as far as possible to come to an agreement, the new law creates three avenues which enable spouses to move from one type of divorce to another.
In the 3nd, 4rd and 5th types, the hearing before the judge is always preceded by attempted conciliation. The judge takes temporary measures to apply during the divorce proceedings (offer of mediation, establishing separate residences, assigning the use of the conjugal home and its contents, children's place of residence, exchange for payment, setting maintenance payments, load distribution, drawing up an estimated inventory, appointing a notaire to draw up plans for the liquidation of the matrimonial regime , etc.).
This is now most frequently in the form of a cash sum. It may be paid as an annuity for life or as a combination of cash sum and annuity. In the event of death of the spouse paying the financial support, his/her heirs only have to continue paying the financial support till the assets from the estate are exhausted.
Divorce and gifts made between spouses
Gifts between spouses with immediate effect (gifts of existing assets ) are now irrevocable. As concerns gifts of future assets (gifts to a surviving spouse), these are automatically revoked by divorce unless the spouses wish otherwise.