The parties can only divorce under the conditions of the new divorce by mutual consent if French law is applicable.
As a safeguard, the divorce agreement established by the lawyers must include assent on the choice of law applicable to divorce designating French law to govern the causes of divorce.
Using this procedure when living abroad
The notary may officially record the agreement constituting the assent of the spouses regardless of the usual residence of the parties. This means that a French couple living in Chile can divorce conventionally by filing a divorce agreement with a French notary.
The divorce agreement can be drafted in a foreign language: it must then be accompanied by a translation into French to enable the notary to ensure compliance with the formal requirements (cooling-off period, mandatory information, etc.).
The effects of divorce without a judge abroad
With this type of divorce, the fact that the former spouses have neither a judgement nor an authentic legal instrument may complicate its recognition and execution abroad.
Europe remains an exception. The European Union provides for a system of free movement of decisions rendered in matrimonial matters and parental responsibility, which applies to divorce without a judge.
For intra-European divorces, the parties may ask the notary who has officially recorded the divorce agreement to issue them with one of the certificates recognising this separation but with limitations. Anything relating to the right to visit or to the compensatory allowance must be assessed by the foreign judge.
Before resorting to this type of divorce, it is advisable to look into its effects in the country of residence.
Circular of the Ministry of Justice no. CIV / 02/17 of 26 January 2017, Council Regulation (EC) no 2201/203 of 27 November 2003, known as “Brussels IIa”
Decree no. 2016-1907 of 28 December 2016