Several divorce procedures exist divorce through mutual consent, accepted divorce, definitive alteration of conjugal relationship, divorce for cause…
Divorce through mutual consent
This amicable procedure presupposes that the couple agrees not only on the very principle of divorce, but also on all of its consequences (residence for the children, right of access and accommodation, amount of alimony, division of property, etc.).
The 21st century justice modernization law, dated November 18, 2016 introduced divorce through mutual consent, without legal process (sometimes known as "divorce without a judge"). Since January 1, 2017, spouses wishing to divorce through mutual consent, no longer need to go through the family affairs judge, with exceptions. The spouses are each assisted by a lawyer and take note of their agreement on the marriage breakdown, through an agreement. Each spouse has a period of reflection amounting to fifteen days before signing this agreement and cannot waive this period. At the request of one of the lawyers, the agreement is filed with a notary, whose role is to monitor the compliance with the procedure, both in terms of substance and deadlines. This filing leads to a divorce for the spouses and therefore, the agreement by giving it a certain date and binding.
However, the agreement must be submitted for approval to the Family Affairs Judge (FAJ) when one of the spouses' minor children requests to be heard by the judge. In which case, divorce by mutual consent is legal.
Generally, it is desirable that the spouses consult a notary in order to help them organize the separation of their respective assets. Last but not least, its intervention is compulsory if the couple owns immovable property (read the "divorce and division of property").
To be noted:
- The proceedings in progress dated January 1, 2017 remain binding, if the petition for divorce by mutual consent has been filed before this date.
- If one of the spouses is subject to a protective measure (guardianship or curatorship mainly), divorce by mutual consent is forbidden.
Two lawyers or one?
The spouses who wish to divorce through mutual consent, are each assisted by a lawyer. On the other hand, when the divorce by mutual consent is binding (this is the case when a minor child of the couple has asked to be heard by the judge), the spouses can choose only one lawyer, through common agreement.
Live separated or married?
To be noted: It is common for one of the spouses to leave the marital home before even initiating divorce proceedings. However, even if separated, the spouses remain subject to the marriage obligations (assistance and help towards the other mainly)
This breaking up, known as de facto separation, does not in any way change the couple's inheritance rights and their situation regarding property. Moreover, if the spouses are married under the community regime, their income and all the goods they may buy even after their separation, remain mutual.
High-conflict divorce: accepted divorce, divorce for cause, definitive alteration of conjugal relationship
Careful: the following developments are applicable to procedures prior to September 1, 2021. From this date on, litigious divorces will be modified, in a major way.
If one of the spouses does not wish to divorce or if the spouses disagree on the financial or personal terms of their separation, the procedure becomes contentious. It is initiated by the filing of an application with the judicial court drawn up by the lawyer for the requesting spouse. Once seized, the family affairs judge summons the spouses to a conciliation hearing. If at the end of this hearing the judge finds that the spouse who took the initiative in the proceedings, maintains his/her request, he issues a non-conciliation order. The spouse who filed the initial petition has three months to file a divorce with the other, after which the other spouse may also file for divorce, within the maximum period of 30 months. Once this period has gone by, the decree, which sets the interim measures in particular, is invalid.
This divorce procedure to accept the breakdown of marriage can be considered, when the spouses agree on the principle of divorce, but aren’t able to find a common ground when it comes to the consequences.
To be noted: once they have opted for this kind of divorce, the spouses cannot choose another procedure, except to move towards a divorce through mutual consent.
Divorce for cause
A spouse can request a divorce for cause, if his spouse has committed infidelity, a humiliation, failure to contribute to the expenses of the marriage, violence, etc. Anyone who invokes a misconduct, must prove it (testimonies, medical certificate, bailiff's report, etc). The fault needs to be extremely serious, that maintaining a cohabitation is impossible. Depending on the situation, the judge shall grant a divorce on the sole wrongdoings of one of the spouses or on shared wrongdoings. The spouse who is accused of wrongdoing may be ordered to pay damages to his spouse, if the breakdown triggers moral or material damage for the latter.
Divorce for definitive alteration of conjugal relationship
A spouse who is able to prove that cohabitation has been ceased for at least two years, on the date of summon, can obtain this type of divorce without having to invoke any reason (and even if his spouse does not wish to end to the conjugal bond). The attacked spouse can retaliate with a divorce application, for misconduct.
To be noted: September 1, 2021 onward, the cessation period of cohabitation, from two years is reduced to one year.
In all 3 cases, the proceedings before the judge will begin with an attempt which favors conciliation.
If at the end of this hearing, the judge finds that the spouse who took the initiative in the proceedings maintains his/her request, the latter issues a non-conciliation decree. The spouse who filed the initial petition has up to three months to summon the other spouse for a divorce. It is on this occasion, that he specifies the type of divorce he/she wishes to establish.
The judge then takes interim measures for the procedure’s duration (an offer for mediation, setting a separate residence, allocating tenure accommodation and furniture free of charge or not, place of residence for children, setting child support, distribution of expenses, establishment of an estimated inventory, appointment of a notary to draw up a plan to settle the matrimonial property regime, etc.).
The compensatory benefit scheme
Any spouse (even at fault) for whom the divorce is likely to have major financial consequences, may claim a compensatory allowance, which shall be paid by the ex-spouse. It is set according to the requirements of the spouse, to whom it shall be paid and the resources of the other. The amount is assessed on a lump sum basis; several criteria are taken into account (mainly duration of marriage, age and state of health of the spouses, professional and property situation, etc.). It is established through a mutual agreement, taken by the spouses in the case of a divorce through mutual consent and by the judge, in the event of a dispute or contentious divorces.
Capital or pension exceptionally
The compensatory allowance is, in principle, paid in the form of a capital. Most of the time, the capital is paid only once but by inheritance to the debtor, the payment can be phased. In exceptional cases, the compensatory allowance can be paid in the form of a life annuity (which means, for life), if the beneficiary's age or state of health, does not allow him to support himself.
Taxation of compensatory benefits: read the content "Taxes: how to declare income during the year of divorce”