Since 1 January 2017, spouses who separate by mutual consent are no longer required to go through a court. They can register their divorce agreement with the notary.
This divorce is open to spouses who agree on the principle of the separation and its consequences (sharing of property, the residence of children, etc.). No minimum duration of married life is required.
Spouses should simply speak to a lawyer. Each of them must have their own legal counsel to guarantee that the interests of each party are safeguarded.
In the presence of minor children, the law requires parents to inform their children who are “capable of discernment” of their right to be heard by the judge. If a child asks to be heard by the judge, the parents will have to abandon the idea of a divorce without a judge and then proceed to the judicial procedure of divorce by mutual consent or otherwise.
The content of the agreement
The spouses draw up a draft agreement with their lawyer and proceed with the liquidation of the matrimonial regime before a notary.
The draft agreement establishes the relationship between the former spouses and the relationships that each of them will have with the children: the common name of the woman, the assignment of accommodation in the event of a lease, access to children, maintenance allowance, etc. The agreement also contains the form in which the minor declares that they have been informed by their parents of their right to be heard by the judge and that they do not wish to use it.
Registration of the agreement
The spouses have a cooling-off period of a fortnight from receipt of the draft agreement. At the end of this period, they each sign the agreement which is then countersigned by their lawyers.
The countersigned agreement is then sent to the notary within 7 days of the signature date. This official recording assigns it a certain date and enforceability that makes it possible to resort to forced execution in the event of non-compliance with undertakings.
The divorce is noted in the margin of the marriage certificate and the birth certificate of each spouse, at the request of the interested party or their lawyer, in view of a certificate of filing issued by the notary. (Article 1147 of the French Code of Civil Procedure).
The transition to judicial proceedings
The spouses can be assisted by the same lawyer or by different counsels. The latter lodges a petition for divorce with the secretariat of the registry of the district court. In the event of a divorce by mutual consent, they must also submit an agreement to the judge who may agree or refuse to approve it if they find that it does not sufficiently protect the interests of children or a spouse.
Divorce without a judge is excluded when one of the spouses is under the protection of justice, under wardship or under guardianship.
Article 230 et seq. of the French Civil Code
Article 1088 et seq. of the French Code of Civil Procedure.