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Author: <span class="vcard">Anne Montgomery</span>

If the spouses can not agree to divorce amicably, they can opt for the procedure known as divorce for acceptance of the principle of marriage breakdown. The spouses, then agree on the principle of divorce, without being on its consequences (division of property, compensatory allowance, fate of children …).

In this case, one of the two spouses introduces the divorce proceedings (by motion) and, at the time of the conciliation hearing and provided that each of the parties is assisted by a lawyer, the parties may specify to the Judge Family Affairs that they wish to sign a report which states their agreement on the principle of the rupture.

It is also possible for spouses to file a joint petition directly.

The minutes must be signed by both spouses, their respective lawyers, the Judge and the Registrar and can not be revoked, even by way of appeal.

It is advisable for the parties to re-read the information contained therein before signing, in order to avoid any further complications …

The choice of this procedure exempts the parties from having to prove any fault (divorce for fault) or separation of the spouses for more than two years (divorce for permanent alteration of the marital bond), since the divorce will be pronounced, regardless of the facts at the origin of the marriage breakdown.

Subsequently, the second stage of the procedure (except in the case of a joint petition) consists of one of the spouses assigning the other, in order to settle only the consequences of the divorce (on which the spouses could not find common ground, since they would otherwise have divorced using the mutual consent procedure).

Each spouse informs the judge of his / her wishes regarding the pecuniary consequences (division of property, compensatory allowance, etc.) and the measures relating to the children (parental authority, principal residence, right of access and lodging, alimony), by way of conclusions written by their respective lawyers.

The Judge will decide in his decision only those points on which the spouses disagree.

It should be known that at all stages of the procedure, the spouses can have the Judge declare their complete agreement on the principle of divorce and its consequences and switch to a divorce procedure by mutual consent.

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By agreeing on everything, you will tell your Lawyer (since, and only for this type of procedure, you can have only one)!

The procedure of divorce “amicably” (or by mutual consent) is pleasant in that it allows to combine speed and simplicity.

When I say “without pain”, I explain myself (I already hear some moaning because they do not agree): a divorce, a separation are necessarily painful (maybe not for both parties, especially if the other has already moved on …), but conflictual divorces only maintain and / or rekindle the wounds, while the amicable procedure is somewhat curvaceous.

Not that everything always happens in joy and good mood, since some people accept against their will to use this procedure rather than another for purely “practical” reasons (it’s quick and easy, it costs less etc.), but at least the climate is more peaceful and it is always won (you do not have to provide the magistrate the reasons for your divorce).

Moreover, you control the situation and there are no surprises, whereas in the conflicting procedures, it is the Judge who decides (since you do not agree).

So when I say “agree on everything”, I mean that once you have decided to divorce, you have to sit around a table (if possible, serve you a good hot chocolate …) and discuss frankly to settle all the consequences of your separation, namely:

CONCERNING SPOUSES

  • Will she resume the use of her name or retain the use of the husband’s name, provided that he accepts it?
  • Who will maintain the enjoyment of the matrimonial home (rent or property)?
  • What happens to movable property? How will they be shared? What is their overall estimate?
  • Is there any common property (the best is to settle their fate before beginning the procedure of divorce, in order to be able to attach to the motion filed with the Tribunal the draft statement of assets prepared by the Notary)?
  • Will one spouse pay the other a compensatory allowance and how much?
  • How will the tax question be settled?
  • Who will pay for the lawyer’s fees? (This can be one or both spouses, half of them each or in a different distribution, of course, if you both benefit from the full legal aid, you will have nothing to settle) .

CONCERNING CHILDREN

  • Will parental authority be joint or exclusive?
    In general, when it is a divorce by mutual consent, it will be joint.
  • In which of the parents will be fixed the residence of the children?
  • How will the visiting and accommodation rights of the parents where the children do not reside be organized?
    This can be organized in a classic way: a weekend on two of Friday evening or Saturday morning out of classes at Sunday evening 18 or 19 hours and half of the school holidays.
    But according to the profession of the parents, the proximity of the homes of the two spouses, a different organization can be put in place.
    Alternate residence is also possible: the child will live one week out of two (or a month out of two, or even one year out of two …) alternately at his mother, then his father.
    However, certain conditions must be met, such as the proximity of the homes of the parents to allow the child to keep the same school and the same friends.
    As with all questions concerning children, the interest of the children should be taken into account.
  • Will child support be paid to children and how much will it be?

Once you have reviewed all of these points, you will have your Advocate write a petition that will be filed with the Tribunal.

The spouses are then summoned only once to the Family Justice who will homologate the agreement signed by the spouses and will pronounce their divorce, the same day of the convocation.

So, put a little good will and you can opt for this type of procedure …

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The fault divorce is one of the 4 divorce cases that currently exist in France.

The law defines this case as follows: “divorce may be requested by one of the spouses when the facts constituting a serious or renewed violation of the duties and obligations of the marriage are attributable to his spouse and make it intolerable the maintenance of the common life”.

All of the above conditions must be met, but the Family Justice Judge will then assess whether the fault really exists and whether it is serious enough to be successful.

The fault must be intentional (without necessarily having an intention to harm) and committed during the marriage (and even during the divorce proceeding).

I can only mention here some examples of faults (most common) retained by the jurisprudence:

  • violation of the fidelity obligation (adultery),
  • failure to cohabit (abandonment of marital home), duties relating to the upkeep and upbringing of children,
  • physical, moral violence.

If the judge considers that there is harm to the responsibility of both spouses, he can pronounce the divorce to the shared wrongs.

In case of reconciliation of the spouses and at any time, they can turn the procedure of divorce for misconduct procedure more “consensual” (mutual consent, acceptance of the principle of the breakdown of marriage).

The main thing to remember about this divorce procedure is:

  • the applicant spouse may claim damages from the other spouse,
  • you have to be certain, when you engage in this type of procedure, that you have serious justifications to present to the judge, which is not always obvious.

Indeed, it is not enough simply to invoke any fault!

It is also necessary to be able to demonstrate the existence and the gravity with supporting documents (complaints, handrails, medical certificates in case of violence in particular, testimonies written by witnesses etc.).

Your lawyer will determine with you, based on the evidence you will be able to provide, whether the fault divorce procedure is best for you.

The risk, if you do not succeed in justifying the fault with the Judge, is that he refuses outright to pronounce the divorce on this basis.

You will then have to start the procedure again …

So do not be mistaken.

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