Getting divorce in France: Different divorce procedures
There are five divorce proceedings: divorce by mutual consent, divorce by legal consent, divorce accepted, divorce as a result of the definitive alteration of the marital bond, and fault divorce.
1st divorce procedure: Divorce by mutual consent without a judge
The law to modernize the justice of the XXI century dated November 2016, 18th instituted a new divorce without judiciary process. Thus, from January 1, 2017, spouses no longer pass before the judge to get divorced.
In this procedure, the spouses must agree on a draft agreement that resolves all the consequences (personal and patrimonial) of the divorce: (residence of the children, alimony, compensatory allowance, division of property and debts, etc.).
This divorce agreement is countersigned by the lawyer of each of the two parties (the presence of two lawyers is mandatory). It records point by point all the legal effects of separation and includes in appendix a statement of assets .
The spouses have a withdrawal period of fifteen days before signing the agreement with their respective lawyers. At the request of one of the lawyers, it is lodged with the rank of minutes of a french notaire whose role is to verify compliance with the procedure, both on form and on time. This deposit gives effect to the agreement by giving it a certain date and enforceability .
Note: Proceedings in process on 1 January 2017 remain judicial if the request for divorce by mutual consent has been filed before that date.
2nd divorce procedure: Divorce by mutual legal consent
The new procedure of divorce by mutual agreement without a judge is impossible 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, and the agreement is submitted to the judge for approval.
Only one pass before the judge is sufficient (unless the judge refuses to homologate the convention). The spouses can share the same lawyer.
Note: If one of the spouses is the object of a protective measure (guardianship or curatorship in particular), divorce by mutual consent is forbidden.
3rd divorce procedure: Divorce on the basis that both spouses accept that the marriage has broken down
In this legal procedure, the spouses agree to divorce but they do not have to agree on all the consequences of their divorce.
The judge then ensure that each spouse freely gave his agreement. The judge pronounces the divorce and rules on the consequences.
4rd divorce procedure: 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 divorce procedure: fault divorce
One spouse reproaching his spouse for serious or repeated breach of the duties and obligations of marriage that have made continued cohabitation impossible, can ask for an at-fault divorce. 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 law creates three avenues which enable spouses to move from one type of divorce to another.
In the 3rd, 4th and 5th divorce procedure, the hearing before the judge begins with an 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.).
Intended to compensate for the financial imbalances caused by divorce in the living conditions of the respective spouses, the compensatory allowance is paid most often in the form of capital. Depending on its form and duration, the person paying it benefits from a tax reduction (capped). On the other hand, the spouse receiving the compensatory allowance will not be taxed income tax.
The compensatory allowance can be paid in the form of a cash sum. When the compensatory allowance is served in the form of annuities, the payments are deductible for the debtor and taxable in the name of the beneficiary..
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.