REAL, Avocats à la Cour
The law of June 27th, 2018, instituting a family court judge, reforming divorce and parental authority, entering into force on November 1st, 2018, considerably amends the legal basis for divorce applications.
The former legal grounds on which a divorce application could be based on, namely divorce on the grounds of fault (former Article 229 of the Civil Code), divorce for separation of more than three years (former Article 230 of the Civil Code) and divorce for separation of more than five years in case of illness (former Article 231 of the Civil Code) are indeed abolished.
In accordance with the new Article 229 of the Civil Code, divorce may now only be pronounced in two cases: either by mutual consent or for irremediable break down of relationships.
The purpose of the new legal basis for divorce applications as established by the law of June 27th, 2018, is to remedy the shortcomings detected in former litigation disputes regarding not only the particularly lengthy divorce proceedings but also the abuses arising from the difficulties, possibly even the impossibility of divorcing in the absence of evidence of a fault or the spouse’s consent to divorce (A).
The reform of divorces by mutual consent as operated by the law of June 27th 2018 reveals in contrast a loss of efficiency in terms of rapidity to put an end to the parties’ union and nowadays seems to morph into a procedural complexity (B).
A – The merits of a divorce for irremediable break down of relationships: celerity and simplification of divorce proceedings
The reform provides that a divorce for irremediable break down of relationships can be claimed, via an attorney, either unilaterally by one of the spouses or by both spouses jointly if an agreement is found regarding the principle of divorce.
After filing a unilateral or joint divorce petition, the parties are subsequently summoned by the clerk within 15 days following the filing of the said petition, the notice of appearance being of 8 days. The court hearing is then fixed within one month from the date of expiry of the aforementioned appearance notice.
In case of agreement between the parties on the principle of divorce, it is relevant to underline that the divorce can be pronounced in a substantially faster time lapse since it can be pronounced as of the fixing of the first court hearing.
Elseways if no agreement can be found between the parties on the entirety of the divorce’s consequences or on eventual accessory measures, the family court judge can rule separately and later on that subject, without affecting his decision to grant the divorce or not.
Another non-negligible element, which comes out of the new legal basis for divorce, is henceforth the possibility, on the same basis as the Portuguese or French law, to be able to divorce in the absence of a mutual will of the spouses and more specifically without having to prove the evidence of a fault of the absent spouse or the unwillingness of the spouse to divorce.
If remarkable steps forward can be noticed regarding the divorce proceedings for irremediable break down of relationships, the same observation can unfortunately not be made in terms of non-litigated divorces (B).
B – The reformed divorce by mutual consent : towards a complex and decelerated procedure ?
The new procedure of divorce by mutual consent requires to refer the matter to the Court through a joint divorce petition filed with the clerk by attaching the divorce settlement agreement drafted by either an attorney or a notary, the legally required documents as well as the establishment of an inventory of the spouses’ joint property subject to property division.
Following the filing of a divorce petition, the clerk will also convene the parties in a time lapse of 15 days. It should however be pointed out that the legislator omitted to mention the time limit to be provided for the fixation of the court hearing, so that the parties are not in any way assured to benefit from a short delay for the fixation of their first court hearing before the family court judge.
Furthermore, once the family court judge will have personally convened the parties in order for them to confirm their willingness to divorce, the judge will carry out an analysis of the content of the divorce settlement. He shall also review that none of the clauses contained in the said settlement are contrary to the children’s best interest and that the settlement does not disproportionally restrict the spouses’ interests.
If the judge considers the divorce settlement to be jeopardising the children or the spouses’ interests, the parties will be given 6 weeks time to modify the clause(s) and present a new divorce settlement. New debates regarding the said settlement will be fixed at a later court hearing posteriorly to the aforementioned six weeks period.
If a new divorce settlement is not provided to the Court in the given deadline, the application filed for a divorce by mutual consent will be declared null and void by judgement.
Adversely, if the new divorce settlement is provided to the court on time, the judge may either declare the modified settlement to be appropriate and therefore grant the divorce or conversely rule the settlement to be inadequate so as to issue a committal for trial in front of three judges, the said panel having then the opportunity to approve the settlement or render a judgement rejecting the divorce to be granted.
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It must therefore be concluded that unlike the institution of a new legal basis for divorce for irremediable breach of relationships, the legislator fixed new procedural rules in terms of divorce by mutual consent which tend to complicate the regime as it existed until now, with the risk, in fine, to result to a divorce that will be granted belatedly as if it had been based on the irremediable breach of relationships.
The downturn and the future practical applications of the new procedural rules set by the reform will demonstrate whether the concerns regarding slowness and complexity are justified.
In any case, recourse to divorce for irremediable breach of relationships can be favourably welcomed by both spouses who both agree on the principle of divorce and are willing to see their divorce be expeditiously granted.