SOME QUESTIONS ABOUT THE NEW JUDICIAL DIVORCE PROCEDURE

The new judicial divorce procedure entered into force on 1 January 2021 and is applicable to all proceedings initiated as from 1 January 2021. It therefore does not affect proceedings for which the petition for divorce was filed before 31 December 2020, which still follow the rules of the old procedure.

Does each spouse need to have a lawyer?

Yes, with this new procedure, each spouse must have his or her own lawyer who will intervene from the beginning of the procedure. It is therefore impossible to divorce without a lawyer because this obligation also exists for divorce by mutual consent.

How to apply for divorce?

The application for divorce is made either by a writ of summons (only one spouse makes the application) or by a joint application (both spouses make the application).

This document, which is initiating the proceedings, must met certain conditions to be valid. It must particularly specify the date of the first hearing on orientation and provisional measures. The Court clerk will give this date to the lawyer so that he can serve the document initiating the proceedings on the other spouse.

The writ of summons must not contain the legal ground for the divorce application when it is based on the fault of the other spouse. Otherwise, the application for divorce will be inadmissible. It will be necessary to wait for the first submissions on the merits to apply for a divorce on the grounds of fault to provide additional time for reflection.

How to submit a valid application to the judge?

For the judge to be seized, it is compulsory to deliver the document, once the other party has received it by bailiff, to the registry, within time limits. If these time limits are not respected, the judge may declare the act initiating proceedings null and void.

Does the defendant have a time limit to mandate a lawyer?

The defendant spouse’s lawyer must be appointed within 15 days of service of the document or until the hearing when the summons is issued within 15 days or less.

What are the grounds for a judicial divorce (except for divorce by mutual consent)?

The application for divorce may be based on one of the three grounds provided for by the law:

  1. Definitive alteration of the marital bond: Divorce may be granted even if the other spouse does not wish to divorce, provided that a certain separation period is respected. The spouses must now prove that they have been separated for one year, unlike the two years of separation required beforeJanuary 2021. This one-year period is assessed on the day of the divorce application when the application is made in the writ of summons. It is assessed on the day the family court pronounces the divorce if this request is made in the first pleadings on the merits: one year will then have to elapse between the date of the divorce application and the day the court pronounces the divorce.
  • Acceptance of the principle of divorce: The spouses agree on the principle of the divorce, but not necessarily on its consequences. 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 at the latest within six months prior to the application by both spouses and their lawyers.

This acceptance of the principle of the marriage breakdown can occur at three different times: 

  • On the day the application is lodged: the deed of attorneys accepting the principle of termination must be annexed to the joint application initiating the proceedings;
  • In the first pleadings on the merits: provided that the basis for the divorce was not invoked in the document initiating the proceedings. One of the three acts of acceptance is then annexed to the conclusions;
  • At any time during the proceedings: the spouses decide to change the initial basis of their divorce (fault or permanent alteration of the marital bond). The declaration of acceptance or the copy of the lawyers’ acceptance document is attached to the concordant conclusions.
  • Fault: the divorce is then requested by invoking the fault of the other spouse. The basis will then be specified only in the first pleadings on the merits. The spouses are prohibited from mentioning this basis as well as the facts at the origin of the breakdown, at the stage of the introduction of the proceedings.

Can I change the ground for divorce during the proceedings?

In principle, it is not possible to change the basis of the case during the course of the proceedings, except in three cases:

  • I have applied for a divorce on the grounds of permanent impairment of the marriage bond.
  • My spouse counterclaims for divorce on grounds of fault. I can then also ask for a divorce for fault.
  • The spouses may change their minds during the course of the procedure and choose either a divorce on accepted demand or a divorce by mutual consent. In the latter case, they will withdraw their action before the judge and sign a divorce agreement by lawyer’s act.

Can I ask the judge for provisional measures for the duration of the proceedings, until the day I am divorced?

These provisional measures (e.g. use of the matrimonial home, maintenance for one of the spouses and/or for the children, organisation of the children’s lives, provisional settlement of household debts, appointment of an expert or a notary) may be requested at any time during the proceedings.

They may be requested in the document initiating the proceedings, or by means of separate submissions addressed to the family court.

The date of effect of the interim measures is determined by the judge. They take effect either on the date of the order on provisional measures or on another date set by the judge.  However, they may not take effect before the date of the application for divorce. Nor may they last beyond the date on which the divorce becomes final.

What is this first hearing, the date of which must be indicated in the document initiating the proceedings?

The orientation and provisional measures hearing takes place at the beginning of the procedure. This is a double hearing:

  • The orientation hearing: This procedural hearing is mandatory. The presence of the spouses is not necessary but it is in principle preferable that the lawyers be present. The judge must discuss with them the procedural option they choose, either a classic pre-trial procedure with the setting of a procedural timetable by the judge, or a participatory pre-trial procedure. In this case, the case can already be scheduled for a closing and pleading hearing on a date agreed with the judge.
  • The hearing on provisional measures: This is optional and is held only if the spouses or only one of them has requested provisional measures. The parties are obliged to constitute a lawyer and therefore to be represented at the hearing. Their presence is not obligatory but is, in principle, recommended, especially when the debates will concern, even partially, the children.

At the end of this hearing, an order on provisional measures is issued, with provisional enforcement as of right, subject to appeal within 15 days of notification of the decision.

Will this first hearing be followed by others?

Further hearings will be scheduled:

  • Orientation hearings (unless the lawyers and the spouses have opted for a participative pre-trial procedure) during which the lawyers will exchange their conclusions and documents, according to a schedule set by the magistrate.
  • Hearings on provisional measures: the date of these hearings will be set at the same time as the orientation hearings. They are only set if, as in the first hearing, the spouses or one of them requests provisional measures or the modification or cancellation of those already set during the proceedings.
  • The closing hearing: this is the date after which no more conclusions or documents can be exchanged. It is therefore a very important date.
  • The oral hearing: The date of the pleadings is the date on which the lawyers will plead, or in certain cases, submit their entire case to the judge. The divorce decision will then be taken under advisement and handed down by the judge on a date that he or she will set.

When will the divorce be granted?

The divorce is pronounced after the pleadings, within a time limit that varies from one court to another. The judge will render his decision (this is the date of the deliberation). The lawyers will then receive the enforceable decision. This decision will be served first on the lawyer and then on the parties, or at least one of them. This service starts the two-month appeal period. There are three hypotheses:

  • If neither spouse appeals, the divorce will be final at the end of this period.
  • If the spouses do not appeal against the consequences of the divorce, the divorce will only become final at the end of the period of time that the respondent (the spouse who did not lodge the main appeal) has to conclude in response.
  • If one of the spouses files a general appeal, the divorce will not be granted at this stage but at the end of the appeal proceedings and provided that one of the spouses does not subsequently appeal against the appeal judgment.