Since the divorce reform, yet made to simplify people's lives, it has become difficult to navigate.
So before getting to the heart of the matter, here is an outline of the different stages of a divorce proceeding.
The law of May 26, 2004 n ° 2004-439 entered into force on January 1, 2005, completely reformed the divorce.
The legislator's desire was to simplify and speed up the divorce procedure while placing it under the auspices of conciliation. It was also a question of resolving the question of the pecuniary interests of the spouses and the liquidation of the matrimonial regime which could be the subject of a long and bitter litigation several years after the pronouncement of the divorce.
In fact, apart from the names of the different forms of divorce, not much has changed. There is always one amicable procedure and three contentious procedures.
The different cases of divorce
The old divorce on joint application has become divorce by mutual consent (article 230 of the civil code). It is the “amicable” divorce par excellence, because the spouses agree both on the breaking of the marital bond, and on the effects and consequences of the divorce.
Since 2017, there is no longer any need to go before the judge to approve it (unless the child requests to be heard by the Family Judge).
A simple agreement drawn up by lawyers and filed with a notary is enough to divorce.
There are three cases of contentious divorce:
- Divorce on accepted application has become divorce accepted on the principle of marriage breakdown (article 233 of the civil code);
- Divorce for breakdown of cohabitation has become divorce for permanent alteration of the marital bond (article 237 of the civil code);
- The old fault divorce has remained ... divorce for fault which was narrowly maintained. (article 242 of the civil code);
In fact, the main divorce reform is due to the new procedures put in place in the event of a contentious divorce.
The different stages of the divorce procedure
The initial request: The “Common Core”
From now on, whatever the contentious divorce envisaged, the procedure starts with a so-called “Common Trunk” request. The petition does not mention the grounds for the separation, nor the grievances that may be raised against the other spouse (or very few) and does not specify the form of divorce envisaged.
The request only seeks provisional measures to organize the separation of the couple during the non-conciliation hearing.
The non-conciliation hearing
The spouses are summoned to the hearing at the end of which the judge will issue a Non-Conciliation Order (ONC).
This first hearing is very important because the judge, after hearing the spouses, will set the provisional measures concerning the mode of custody and visitation of the children, the amount of support, the fate of the marital home, the fate of debts ... And these provisions will apply throughout the duration of the divorce proceedings.
The petition for divorce
Within 30 months of the ONC, it will be up to one of the spouses to summon their divorce spouse. In the absence of an assignment, the ONC will lapse. If one of the spouses still wanted a divorce, they would have to start all over again.
The choice of divorce will be made at this time and must be mentioned in the petition.
Unless at the time of conciliation the spouses had agreed on the principle of the breakdown of the marriage (divorce accepted) in which case, they will have to continue the procedure on the same basis.
The request must contain a summary statement of the patrimony of the assigning spouse, and a plan for the liquidation and settlement of the patrimonial interests of the spouses.
The legislator has encouraged the possibility for couples in the process of divorce to opt for another less contentious procedure, by setting up a bridging system.
At any time you can go from a contentious divorce to a divorce on mutual consent
At any time you can go from a fault divorce or a divorce for permanent alteration of the marital bond to an accepted divorce
If the plaintiff bases his initial request on the divorce for definitive alteration of the marital bond, the spouse will be able to reply (by forming a counterclaim) and ask for a divorce for fault. The applicant spouse can then change his request and proceed with a divorce for fault.
The date of the divorce
The date of the divorce is no longer that of the summons (nor that of the final judgment). The effects of the divorce are retroactive to the date of the Non-Conciliation Order.
For divorce by mutual consent, the date chosen will be the date of homologation, or the date chosen by the spouses who can trace the effects of the divorce to the day of separation.
The liquidation of the conjugal regime and the sharing of the community
From the divorce judgment, the notary has one year to complete the liquidation operations.
A period of 6 additional months may be granted in the event of difficulties.
The matrimonial advantages and gifts acquired during the marriage are irrevocable.
Those which did not take effect during the marriage (legacy, donation to the last person alive…) will be revoked automatically with the divorce. Unless the spouses decide otherwise.
In the event of a fault divorce, the law always grants the payment of damages to the victim spouse.
The novelty comes from the fact that in the event of divorce for final alteration, damages may be awarded to the spouse who is not at the origin of the divorce if the rupture should have for him consequences of a particular gravity.
Diagram of divorce proceedings