Divorce isn't all about or fantasized about in a legal battle between spouses with children tossed to one side or the other. All before a dumbfounded judge and lawyers killing each other. There is a faster procedure: amicable divorce, for a little more appeasement during a separation.
Divorce is never easy. Nothing new there. A judge, lawyers and notaries enter into an intimacy to close a story, a final point for a couple. The family is living through a rather complicated time and what to say about the children. But it is good to know that a simpler remedy is possible. Amicable divorce, also known as divorce by mutual consent, is a benefit where the spouses agree to end their marriage. There are different divorces such as the "accepted divorce" which is aimed at spouses who cannot agree on the consequences of their separation, the "divorce for permanent alteration of the marital bond" which targets spouses separated for at least two years and the "fault divorce", pronounced in the event of serious fault of one of the spouses. The amicable divorce procedure makes it possible to unclog the courts so that the family court judge focuses more on contentious divorce cases.
To be unbeatable on this divorce, we asked a few questions to Maître Ancel Bruno, lawyer in Paris, about the various requests to be considered.
What is amicable divorce?
The amicable divorce resulting from the law of November 18, 2016 is a conventional divorce, that is to say it does not require the intervention of the judge. The new legislation is innovative since the divorce is done by deed under private signature countersigned by the lawyers. The latter have an essential function in that they are now the guarantors of the balance of the agreement and must ensure that their client's consent is free and informed. It should be noted that each person will be assisted and advised by their own lawyer. We should add that in the event that one of the minor children asks to be heard by the family court judge, the procedure becomes judicial again (article 229-2 of the civil code). In this configuration, the judge will be responsible for approving the amicable divorce agreement. With the advice of their respective lawyer, spouses have a vested interest in discussing the effects of divorce and reaching agreement on the issue of divorce and its consequences.
At the European level, unlike in France, divorce by mutual consent still takes place in court with a more or less greater degree of control. It should be noted that amicable divorce without a judge is not recognized in all countries.
In summary, the couple decides with the lawyers on the successive consequences of their separation: parental authority, the amount of alimony, the distribution of property and the payment of a compensatory allowance.
Who is concerned ?
Anyone can resort to a diversified amicable divorce. However, there are certain exceptions such as adults under tutorship, curatorship or judicial protection.
Note, a hearing before the JAF (family court judge) verifies that the spouses really want a divorce and that they agree on the effects contained in the divorce agreement. And if one of the spouses is a foreigner or has dual nationality, it is advisable to check with a lawyer specializing in family law to find out about their rights.
How does amicable divorce take place and what are its principles?
The lawyer receives the spouse at his office to have an overview of the case and to analyze whether an amicable process is possible. Indeed, it assumes the agreement of the parties on all the points appearing in the future divorce agreement, which is not always obvious when there are children, real estate or even an important heritage with companies by example.
Then, negotiations between the spouses can start through the intermediary of the two councils, concerning, for example, alternate or exclusive residence, visitation rights and alimony.
Once the parties have found common ground, the lawyer draws up a draft divorce agreement that he sends to his client by registered mail. The acknowledgment of receipt must be signed exclusively by the husband or wife and not by a third party.
A reflection period of 15 days must be allowed to pass, starting from receipt of the mail.
Finally, a meeting is scheduled at the office of one of the two lawyers. It is important to stress that the presence of both spouses and their counsel is compulsory. During this, the agreement drawn up in several copies is signed by each party and their respective lawyers. The appendices are also initialed by all present. A form should be attached stating that the children have been informed by their parents of their right to be heard by the judge and of the possibility of waiving this right.
A copy of the divorce agreement will be sent to the notary within 7 days and another possibly to the tax authorities depending on the specifics of certain cases. The filing of the agreement in the rank of the notary's minutes will give it a certain date and enforceable force.
Once the divorce certificate signed by the notary has been received, one of the lawyers will have to take care of the formalities for transcribing the divorce on the spouses' birth certificate as well as on their marriage certificate.
In a divorce by mutual consent, the number of years of marriage does not count.
Is this a good solution for a faster divorce?
Undeniably, diverted amicable divorce is the best way to get a divorce quickly. Indeed, conflictual divorces and in particular those for fault are much longer. With the end of the confinement period, many couples in a hurry to divorce have turned to this type of procedure. To accelerate the amicable divorce, the legislator could go further by entrusting the entire process to lawyers. Notaries will always retain a cardinal role in the presence of one or more real estate.
Good to know. Some firms offer online divorce services. This online process is only possible for mutual agreement procedures and the steps remain the same. The only difference is that the procedures are dematerialized, giving even more speed to the processing of the file. The conditions are: the spouses do not have minor children, the spouses are not in a situation of over-indebtedness and the spouses do not own property outside French territory. Data reported by the Justifit site.
What is the cost of an amicable divorce?
The fees for a mutual consent divorce vary depending on the attorney's fees. The cost of a divorce by mutual consent is generally in the range of $ 1,000 to $ 4,000. You should know that currently, nearly 45% of marriages end in divorce, including 55% of divorce by mutual consent. Since the presence of the judge is no longer compulsory, the spouses must settle the terms of their divorce themselves with their lawyers, and the notary has the power to make the divorce effective. Notary fees are also to be taken into account, ranging from 500 euros and 700 euros in this type of divorce by mutual consent, if the spouses have real estate, minor children, without forgetting the ancillary costs.
Is this procedure often applied in France?
More than half of divorces are out of court. Many spouses prefer to divorce in this way both for the sake of speed and to protect their children from any conflict.
There are therefore many advantages to making an amicable divorce: a shortened time, an economy in the costs, a freedom to foresee the consequences of the divorce, except complication, a dose of preserved privacy and a certain discretion. Let us not forget the state of well-being for the child thanks to a conciliation of his parents, which avoids lengthy legal steps and endless termination periods.
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