Divorce by mutual consent

Divorce by mutual consent. Divorce by mutual consent was simplified in 2017. It is now possible to divorce very simply. The procedure no longer takes place in court and is accelerated since it is thus possible to divorce in record time: in a fortnight.
Law No. 2016-1547 of November 18, 2016 establishes an extrajudicial mechanism, that is to say without the intervention of a judge.
This is a beneficial simplification for the litigant who thus escapes the slowness of the legal procedure.
In practice, things are  like this  .

1. Compulsory presence of two lawyers.

Each spouse must be assisted by a lawyer.
Previously, when the spouses wanted to divorce by mutual consent before a judge, they could have the same lawyer. This is no longer possible today.

The lawyers will therefore draft a divorce agreement which they will have the spouses sign. The lawyers will in turn countersign this agreement.

2. Parts to be recovered.

The spouses must collect and bring to their lawyers various documents to compile the file:
– a photocopy of their valid identity document;
– the family record book, if he has kept it;
– a complete copy of the marriage certificate dated less than three months;
– a complete copy of the birth certificate of each of the spouses, dated less than three months ago;
– a complete copy of the birth certificate of each of the children, dated less than three months ago;
– the marriage contract if they signed one at the time of their marriage;
– their proof of resources: payslips, tax notices, payment slips from the CAF or any other organization when receiving allowances;
– proof of address: water, electricity, gas or telephone bill;
– supporting documents such as: – the lease contract if the spouses are tenants,
– the amortization schedule for the mortgage loan if they have acquired real estate;
– any loan contracted before or during the marriage, and in the process of being repaid.

Once these documents have been gathered and given to their lawyers, the agreement can be drafted.

3. The divorce agreement.

The divorce agreement is a contract signed by the spouses in which they determine the consequences of their divorce. It is essential that the spouses agree on each of the points discussed, and therefore discuss them together, in the presence of their lawyers.
The points of the divorce agreement should be as follows:

a) The marital home.

The divorce agreement must indicate, when the spouses are still living together, who must leave the marital home and who can stay there.
Of course, the spouses can decide to both leave the marital home and each settle in the place of their choice.

b) The situation of the children

If the spouses have minor children, three points must be addressed:
– parental authority: it is generally exercised jointly by both parents;
– the residence of the children: the spouses will have to decide together if they set up an alternating custody regime or if they fix the residence of the children at the home of one or the other. In the latter case, it will be necessary to lay down precisely the procedures for exercising the right of access and accommodation which the parent with whom the children do not live should benefit from;
– alimony: alimony is a sum of money paid by the more fortunate parent to the other parent, to enable him to provide for the needs of the children.
The amount of this alimony will be fixed by mutual agreement between the spouses, and on the advice of their lawyers, according to the income and expenses of each of the parents.
The divorce agreement must therefore specify this amount as well as its terms of review.

c) The fate of movable property

Movable property is all property acquired before or during the marriage by the spouses, with the exception of real estate which meets a specific legal regime.
These movable assets will therefore be, for example, the television, the kitchen furniture, the cupboards, the marital bed, etc.
The divorce agreement must specify the terms and conditions for the division of these assets.

e) The fate of immovable property

If the spouses have acquired, before or during their marriage, real estate, such as the marital home or any other real estate rented out, the fate of this property must be regulated in the agreement with precision, in particular with regard to the sharing this property. and as to their reimbursement if real estate credit contracts are in progress with a banking organization.

f) Tax obligations

The divorce agreement must specify how the spouses divide the payment of taxes.
A spouse may very well decide to pay all these taxes.

g) The woman’s name

When the spouses marry, the woman has the possibility of bearing the surname of her husband. It is a right and not an obligation, which means that she can continue to be called by her maiden name.
Be that as it may, the day the spouses divorce, they must agree on the port of the marital name. In principle, the wife loses the right to bear the name of her husband because article 264 of the Civil Code expressly provides: “Following the divorce, each of the spouses loses the use of the name of his husband. Nevertheless
, the wife will continue to bear the surname of her husband, especially when the spouses have had children.
This is provided for by paragraph 2 of article 264 of the Civil Code which specifies: “One of the possibility spouses may nevertheless retain the use of the name of the other, either with the agreement of the latter. .. if he proves a particular interest for him or for the children. The
divorce agreement must therefore specify whether or not the wife continues to bear the name of her husband, it being specified that the latter must accept this provision.

h) Fees

The divorce agreement should also specify how the costs will be shared.
The spouses can decide to share them equally or to put them under the responsibility of one of them. The agreement may also provide for an unequal distribution such as, for example, 60% of the costs to be borne by the husband and 40% to be borne by the wife.
All combinations are possible, the main thing being that the spouses agree on this point.

4. Formalities subsequent to the drafting of the agreement.

Each of the lawyers will send their client the draft agreement by registered mail with acknowledgment of receipt. Upon receipt of this letter by each of the spouses, a period of reflection of fifteen days must be observed under the conditions of article 229-4 of the Civil Code.
This means that the spouses must wait a period of fifteen days before signing this agreement.
After this period of fifteen days, the spouses can sign the agreement and return it to their respective lawyers.
This divorce agreement will be countersigned by each of the lawyers.
The agreement will be drawn up in four original copies, of which:
– one will be kept by the wife
– the other will be kept by the spouse
– the third copy will be sent to the notary
– the fourth copy will be kept by the lawyers

5. The deposit in the rank of the minutes of the notary.

When the divorce agreement has been signed by each of the spouses as well as by their respective lawyers, that is to say after the expiry of the fifteen-day withdrawal period, one of the lawyers will transmit this agreement within seven days to the notary chosen by the spouses. The notary will only carry out a formal check of the agreement, therefore simply checking whether the mandatory information is present and whether the fifteen-day withdrawal period has been respected.
Within fifteen days of receipt of the agreement by the notary, the latter will send the lawyers proof of the “submission in the rank of his minutes”.
This means, for the spouses, that the agreement has been received by the notary and that it is definitively registered.
Accordingly, the agreement will be fully enforceable, it will have a certain date and enforceability.
The divorce will then be pronounced.
It is the notary who will take care of the formalities for registering the divorce with the tax services.
The notary will send a certificate of deposit to the lawyers designated in the agreement so that they can complete the formalities of publication with the civil status services.

Now, a divorce can be obtained in record time.
The team of experts from the DAMY law firm is at your disposal throughout France to assist you in your   divorce proceedings.

DAMY Law Firm, Nice, Divorce by mutual consent, 2022.