The new judicial divorce procedure came into force on 1 January 2021. It is applicable to all proceedings instituted as of January 1, 2021. This reform, which aim is to simplify and accelerate the divorce procedure, brings many changes and offers a place of choice for lawyers who can influence the course of the procedure. Each of the spouses must have a lawyer from the start of the procedure.
Institution of proceedings. – The introduction of the proceedings is done by a single act, either a writ of summons or a joint petition, which is the compulsory form in the presence of a deed under private signature countersigned by lawyers recording the agreement of the spouses to a divorce on the grounds of acceptance of the breakdown of the marriage.
The document initiating the proceedings must contain certain information prescribed to be vali: the place, date and time of the first hearing date during which provisional measures will be discussed if one of the spouses requests them.
In this act, the provisions on mediation in family matters, the participatory procedure and the different possibilities of forming an agreement should also be recalled.
The document initiating the proceedings includes the application for divorce, the claims on the merits and, if necessary, the applications for provisional measures. These must be made in a separate section from the substantive applications. Otherwise, they will be inadmissible. The ground for the divorce will not necessarily be specified in this document but most often in the first submissions on the merits. It is even forbidden to do so at this stage when the application for divorce is based on fault. The ground for the divorce may be specified in the document initiating proceedings when the condition relating to the one-year time limit is met (divorce for definitive alteration of the marriage bond) or when the spouses have signed the lawyers’ deed accepting the principle of the break-up (divorce for acceptance of the principle of the break-up of the marriage). In the other cases, the basis will be specified in the first submissions on the merits.
Referral to the judge – The family court is only seized to by the delivery of the summons or the joint application to the clerk’s office. However, if there is a foreign element, the judge will be considered to be seized on the day the document is delivered to the authority responsible for serving it on the other party. Time limits must be respected for the delivery to be valid. Thus, it must be delivered 15 days before the date of the hearing, provided that the date of the hearing is communicated more than 15 days before the date of the delivery, or 2 months from the communication by the court of the date of the hearing when the communication is made by electronic means. If these deadlines are not respected, the judge may declare the nullity of the document initiating the proceedings ex officio or pronounce the nullity at the request of one of the spouses.
Urgency – Where the case is of an urgent nature, the lawyer may ask the judge for a short notice.
The time limit for the constitution of the defendant – The constitution of the defendant spouse must take place within 15 days from the service of the document or until the hearing when the summons is issued within a period of 15 days or less.
The possible grounds for divorce – The application for divorce may be based on one of the three grounds provided by the law:
Definitive alteration of the marital bond: the spouses must prove that they have been separated for one year. If the one-year period is not met at the date of the application, it is necessary to wait for the first submissions on the merits to specify the basis of the application. The one-year period will then be assessed on the day on which the divorce is granted.
Acceptance of the principle of divorce: this basis can now be invoked in three different forms:
The minutes of acceptance, signed by the spouses and their lawyers at the first orientation and provisional measures hearing;
The declaration of acceptance, drawn up by each party and signed by the lawyer and his client;
The parties’ private deed countersigned by lawyers, drawn up in a single copy and signed within six months of the application by both spouses and their lawyers.
Acceptance of the principle of the break-up of the marriage may occur on the day the application is lodged. It will then be noted in the lawyers’ act of acceptance of the principle of the break-up and annexed to the joint application initiating proceedings. It may be requested in the first pleadings on the merits if the basis for the divorce has not been invoked in the document initiating the proceedings. One of the three acceptance documents will then be attached to the submissions. This is also possible at any time during the proceedings if the spouses decide to change the initial ground of their divorce.
Fault: the spouses are prohibited from invoking this ground as well as the facts at the origin of the rupture, at the stage of the introduction of the proceedings. Divorce for fault can therefore only be invoked in the first submissions on the merits.
Provisional measures – The date of the beginning of the provisional measures is fixed by the judge either on the date of the order on provisional measure, or from the date of the divorce application. It is therefore essential to request, for each measure requested, the date from which it is desired that the provisional measure take effect. These measures can be requested in the writ of summons but also at any time during the proceedings.
The effects of the divorce between the spouses, with regard to their property, are fixed on the day of the application for divorce. However, it is possible to request that this date be set earlier, on the date of the cessation of the cohabitation and collaboration between the spouses. It is also possible to file a request for liquidation and partition at any time during the proceedings, provided that proof is provided that there are still disagreements between the spouses.
The orientation and provisional measures hearing – The orientation and provisional measures hearing takes place at the beginning of the proceedings. If neither of the spouses requests provisional measures, the hearing becomes solely an orientation hearing during which the rest of the proceedings will be discussed. The lawyers will be able to say whether they wish to have a traditional pre-trial hearing with the setting of a procedural timetable by the magistrate, or to use a participatory pre-trial procedure.
On the other hand, when the spouses have requested the setting of provisional measures, the judge will have to hear the parties on their requests, in addition to discussing the rest of the proceedings. The parties are obliged to constitute a lawyer and to be represented at the hearing. The presence of the spouses is no longer compulsory but is recommended, especially when the applications concern the children.
An order on provisional measures will then be issued, with provisional enforcement as of right, subject to appeal within 15 days of notification of the decision.
The hearing on the merits – When the preparation of the case is completed after several orientation hearings during which the parties have been able to exchange their writings and documents, the hearing on the merits takes place.
At the end of this hearing, the family court judge issues a decision pronouncing the divorce of the spouses and fixing the final consequences between the spouses. This decision may be appealed, either on all grounds or only regarding the consequences of the divorce.