On October 12, 2016, the reform of divorce by mutual consent was definitively voted and will come into force. from January 1, 2017.
Article 50 of the law specifies that “ the spouses can mutually consent to their divorce by deed under private signature countersigned by lawyers, deposited in the rank of the minutes of a notary ».
From now on, a private deed, two lawyers, a notary will suffice to divorce amicably.
Unless the child of the couple asks to be heard by the judge in which case, it will be necessary submit the agreement to the Family Affairs Judge (JAF) for homologation.
A private deed
The agreement henceforth referred to as a private deed, (and there, there is no possible doubt: it is a contract), will no longer be subject to approval by the JAF. It will therefore suffice 15 days to divorce instead of three months.
Under penalty of nullity, the agreement must expressly mention the names, first names, professions, residence, nationality, date and place of birth of the spouses ... As well as all the provisions relating to the settlement of the effects of the divorce, that is to say, the fate of debts and assets, the payment of alimony or a compensatory allowance, the method of exercising the right of visitation and accommodation of children and a liquidation statement of the matrimonial regime. Thus, the content of the agreement determined amicably by the spouses is not modified by the new measures.
The reform primarily concerns the “diversion” of divorce, ie without going before a judge, but with the intervention of lawyers and a notary.
It will no longer be possible to choose a single lawyer to represent the spouses. On reading the debates, it appears that the new article 229-1 of the Civil Code which requires the presence of two lawyers will come into force on January 1 and will apply to all pending proceedings.
The role of lawyers
Two lawyers responsible for advising, negotiating, and drafting the agreement in the best interests of their respective clients. Thus, protected, the parties draw up the divorce agreement on an equal footing, which dispenses with any control by the judge.
The draft divorce agreement will be sent by registered mail with acknowledgment of receipt to the spouses who, on pain of nullity, will have to benefit from a 15-day reflection period (article 229-4 of the civil code) before signing it.
The divorce agreement once signed by the parties and their respective attorneys is a lawyer's act.
To be specified: The lawyer's act was created in 2011, and codified under article 1374 of the civil code by ordinance 2016-131 of February 10, 2016 which entered into force on October 1, 2016 and according to which, “ the deed under private signature countersigned by the lawyers of each of the parties (…) is proof of the writing and the signature of the parties, both with regard to them and that of their heirs or successors in title ”.
This deed is a new form of agreement located halfway between the deed under simple private signature (concluded and signed by the contracting parties only) and the authentic deed (submitted to the notary for its regularization). Once endorsed with the signature of a lawyer, all acts concluded under private signature (lease, surety bond, recognition of debts, etc.) will become acts of lawyers and will benefit from this fact alone of increased probative force if it were necessary to assert his rights in court.
Its role is to ensure the formal requirements imposed by law. According to articles 229-3 and 229-4 of the Civil Code, this concerns in particular the surnames first names qualities of the parties and of the lawyers who participated in the drafting of the act. It also checks that the spouses have benefited from the 15-day reflection period provided for by law, that the mention specifying that the child has been informed of his right to be heard by the judge.
In principle, he takes no part in the drafting of the act and has no power of control over its content. As it stands, the texts do not specify whether or not the same notary will be able to establish the liquidation statement (which annexed to the agreement forms part of it) and register the divorce agreement. Because it is hard to imagine a notary refusing to register an act in which he would have participated.
A priori, its role is limited to registering the act in order to give it a certain date on which the act will be enforceable. The deed deposited in the rank of the notary's minutes will then be transcribed with the civil status services with mention of the divorce in addition to the civil status.
The cost of the notary will be 50 euros.
Cases of exclusions from a “diverted” divorce
Voices were raised in favor of children and fragile spouses whose protection of interests could not under any pretext escape the control of the judge. The legislator has taken this into account. Article 229-2 of the Civil Code provides for two cases where the amicable divorce agreement will be submitted to the JAF for assessment:The presence of minor children
Any minor capable of discernment has the right to be heard by the judge on all matters concerning him if he so requests (article 388-1 of the civil code).
It will be up to the parents to inform their child of their intention to divorce and of the possibility which is offered to him to be heard by the judge. The agreement should expressly specify whether the children have been informed of their right and if so, that they have waived it.
If the child asked to be heard by the judge, the spouses would no longer be able to continue this express divorce procedure. This remains an amicable divorce procedure but "old version" with the approval of the agreement by the judge.
Spouses under protective supervision
When a spouse benefits from a protection regime such as a safeguard of justice, a curatorship (simple or reinforced) or tutorship, his situation remains under the empire of article 249-4 of the civil code according to which " no petition for divorce by mutual consent or for acceptance of the principle of marriage breakdown can be presented ”.
No more than the old procedure, this new method of diverted divorce is not possible in the presence of a protected spouse.
The gateway from a contentious divorce
Provided for in article 247-1 of the Civil Code, the gateway allows spouses who had started to divorce in a litigation mode to switch to out-of-court amicable mode.
In this case, it is necessary to consider that the spouses, appeased or tired, now agree on all the effects of the divorce. They will have to draw up an agreement with their respective lawyers and file it in the ranks of a notary's minutes.