Amicable divorce, officially called divorce by mutual consent in France, allows spouses to separate without having to go to court.
Although this procedure has many advantages, its completion is conditioned to the spouses being in agreement on all the aspects of their divorce. As we will see, this is not always the case.
Since January 1, 2017, divorce by mutual consent has been diverted. This means that the judge no longer intervenes in the divorce procedure, which is now carried out by the lawyers of the spouses. This novelty stems from the Law of the Modernization of Justice of the XXIst Century, promulgated in France on November 18, 2016. One of its goals was to reduce congestion in courts, since the number of divorces has been steadily increasing over the years.
From now on, divorce by mutual consent benefits from a simplified procedure. An agreement is established between the spouses, with the help of their respective lawyers. The agreement, which deals with all the effects of the divorce (*), is then filed by a notary. The filing of the agreement gives it a certain date and enforceability. The spouses do not have to state the reasons for the divorce.
If a child is born of the marriage, he or she must be informed of his or her right to be heard by the judge.
One of the changes in the law is that each spouse must have his or her own lawyer, where previously only one lawyer could represent both spouses. This is to ensure that each party gave his/her informed consent.
However, if one of the spouses is a foreigner, it should be noted that some countries only recognize judicial divorce. An international lawyer can help you. (*) Article 229-1 of the French Civil Code provides that: “When the spouses agree on the termination of the marriage and its effects, they note, each assisted by a lawyer, their consent in an agreement taking the form of a privately signed deed countersigned by their lawyers and drawn up under the conditions provided for in article 1374″.
Amicable divorce has undeniable advantages. First of all, it is a guarantee of serenity for the spouses, who can freely choose the modalities and consequences of their divorce.
Thanks to amicable divorce, they can :
- Decide on the division of property
- Determine the appropriate amount of alimony, if there is any
- Decide on child custody.
Therefore, it is no longer necessary to go before a judge, a procedure that can accentuate the feeling that the spouses have become “enemies” who fight each other in the hope of obtaining as many advantages as possible. Amicable divorce is then an incentive to find common ground, and to apply an equitable solution that preserves the interests of each party. This facilitates the relationship between the spouses, and makes the divorce easier to overcome.
Finally, the amicable divorce procedure is more flexible and takes less time than a judicial divorce. It is also less expensive, even if a lawyer remains necessary.
If the divorce is contentious, the spouses may have difficulty reaching common ground, especially if there are children involved. That’s where the main disadvantage of amicable divorce is : in the absence of a judge, the former spouses must make the effort to agree on the consequences of the divorce. In some situations, this is not easy. The former spouses can have trouble finding an agreement regarding the exercise of parental authority (residence of the children, visiting rights, alimony…), but also the division of property.
In addition, the obligation for each spouse to have his or her own lawyer may be constraining. Where the old procedure allowed to mutualize the costs, the new amicable divorce forces each spouse to take a lawyer.
Finally, amicable divorce cannot be a solution for all couples, especially binational couples. Indeed, as noted above, if one of the spouses is a foreigner, it will be necessary to check whether his or her country of origin accepts the transcription of the divorce without a court decision.
How to find a fair agreement
The most important thing in an amicable divorce procedure is to choose the right lawyer. Choosing an international lawyer specialized in family law will allow each spouse to get a better understanding of the situation.
Reaching a fair agreement requires a good knowledge of the spouses’ situation, but also of their needs and expectations. Depending on the situation, your lawyer might suggest that you resort to family mediation, or provide you with assistance for divorce proceedings.