REAL, Avocats à la Cour
A large number of parents address the consequences of their separation in an agreement in which they will beforehand and by mutual agreement have determined the different terms and conditions regarding notably the exercise of parental authority, the designation of domicile as well as the rights of access and accommodation of the common child(ren) or even the common child(ren) support.
To that extent, the family law reform operated by the law of 27 June 2018 has introduced a considerable innovation with regards to non-contentious procedures since the accreditation of an agreement concluded between unmarried parties as well as the accreditation of divorce settlements are henceforth expressly provided in the law.
Regarding unmarried parties, the new Article 377 of the Civil Code specifies that the parents can refer to the Court for the accreditation of their agreement in which they organise the exercise of parental authority, designate the domicile and the child’s residence, the rights of access and accommodation as well as the contribution to the child’s maintenance and education.
To do so, the parents assisted where necessary by their attorney, will have to file a joint petition in accreditation of their agreement. The clerk will summon the parties within 15 days from the filing of the petition and the court hearing regarding the accreditation of the agreement will be fixed within one month. The State’s Council Office shall have the possibility to attend the hearing and can at the hearing and if appropriate conclude verbally or through previous written submissions.
Such innovation will have the considerable advantage of obtaining a legally enforceable decision, thus opening the possibility for a potential future conviction of the parent who does not properly execute the measures of the agreement (for example through an attachment made by a court bailiff in order to get payment of a child support).
Furthermore, divorce settlements from married couples will hereafter also be accredited by the Court. It will thus form an integral part of the judgement of divorce. This will facilitate the recognition as well as the execution, not only within the country but also in foreign countries, of decisions granting a divorce, but also of all the measures contained in the parties’s divorce settlement as accredited by the Court and notably those regarding parental authority and rights of access and accommodation of the children.
The divorce settlement will be regarded as a « judgment » within the meaning of international or European Regulations such as the Council Regulation (EC) n°2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n°1347/2000.
However, with the previous legislation about divorce by mutual consent, the Court did simply confirm the elements specified in the parties’ divorce settlement. As a consequence, should one of the parties not respect the settlement, then the other party necessarily had to initiate a new proceeding (for example before the « Justice de Paix » in order to get a judgment condemning the party to the payment of a child support) in order to get an enforceable title in that matter.
This new provision introducing the accreditation by the Court of agreements that parents or spouses have reached together shall be highly welcomed, since such a possibility denotes a security for the parties in order for their agreements to be immediately executed in the event of non-compliance of the measures it contains.