Since January 1, 2017, mutual consent divorce has undergone a major evolution. The Law of November 18, 2016, on the modernization of 21st-century justice, profoundly modified this procedure by removing, in most cases, the intervention of the family court judge. When spouses agree on the principle of the divorce and all its consequences, they can now divorce without a court hearing.
The objective of this reform was to simplify the process for couples wishing to end their marriage amicably while reducing court processing times. Although the procedure is now faster, it remains strictly regulated by the Civil Code to ensure the protection of the interests of each spouse and their children.
How Did Mutual Consent Divorce Work Before 2017?
Before the reform came into effect, all mutual consent divorces had to be approved by a family court judge.
Spouses would establish a divorce agreement and were then summoned to a hearing. The judge verified that each party freely consented to the dissolution of the marriage and that the agreements reached were balanced. The judge could refuse to approve the agreement if they felt it harmed the interests of one of the spouses or the children.
Even when the spouses were in perfect agreement, this judicial step often extended the timeline by several months.
A Simplified Procedure Without a Judge
Since January 1, 2017, Article 229-1 of the Civil Code provides that spouses may divorce by mutual consent through a private agreement countersigned by their lawyers, which is then filed in the records of a notary.
In practice, when no disagreement remains regarding the consequences of the separation, it is no longer necessary to appear before a judge.
This procedure specifically covers agreements regarding:
- the division of property;
- the liquidation of the matrimonial regime;
- child custody and residence;
- the exercise of parental authority;
- child support;
- the compensatory allowance.
The divorce becomes final after the agreement is filed with the notary.
Why Must Each Spouse Be Assisted by Their Own Lawyer?
The reform strengthened the guarantees offered to spouses.
Now, each party must be assisted by their own lawyer. This rule ensures that each spouse receives independent advice and that their consent is fully free and informed.
The lawyer accompanies their client throughout the procedure. They analyze the legal, financial, and tax consequences of the divorce, participate in negotiations, and ensure that the agreements reached respect their client’s interests.
This dual representation constitutes one of the main safeguards of the mutual consent divorce procedure.
The Divorce Agreement: An Essential Document
The divorce agreement is the central piece of the procedure.
It details all the agreements reached between the spouses and organizes all the consequences of their separation.
To be valid, it must include the information required by the Civil Code, notably:
- the full identity of the spouses
- the contact details of both lawyers
- the terms for settling the divorce
- the consequences regarding the children
- the amount of any child support
- the terms of a compensatory allowance
- the conditions for liquidating the matrimonial regime
- the statement of liquidation when the assets include real estate
- the statement certifying that each minor child has been informed of their right to be heard by a judge
An incomplete or irregular agreement may be declared null and void. Drafting it therefore requires a perfect mastery of family law.
What Is the Role of the Notary?
Contrary to a widespread misconception, the notary does not grant the divorce and does not review the content of the agreement.
Their intervention consists mainly of verifying that the formalities required by law have been respected, particularly the mandatory fifteen-day reflection period between the receipt of the draft agreement and its signature.
After these verifications, they file the agreement in their records.
This filing gives the document a certain date and makes it enforceable. From the moment of this formality, the divorce takes effect.
The oversight of the balance of the agreements rests exclusively with the lawyers.
Minor Children Benefit from Special Protection
The reform did not remove the safeguards intended to protect children.
Every minor child capable of discernment must be informed of their right to be heard by the family court judge.
If the child does not wish to be heard, the out-of-court procedure can continue normally.
However, when a child asks to be heard, mutual consent divorce without a judge becomes impossible. The spouses must then initiate judicial proceedings so that the judge can hear the minor’s observations before ruling on the divorce.
This provision ensures that the best interests of the child are taken into account.
In Which Cases Is Divorce Without a Judge Impossible?
Extrajudicial mutual consent divorce is not available for all situations.
Two main scenarios require the intervention of a judge.
The first concerns cases where a minor child asks to exercise their right to be heard.
The second involves situations in which one of the spouses is subject to a legal protection measure, such as guardianship, curatorship, or family authorization. In this case, the legislator considers that judicial oversight remains indispensable to protect the person concerned.
Finally, this procedure requires total agreement between the spouses. The slightest disagreement regarding the division of property, the compensatory allowance, the children, or any other consequence of the divorce leads to judicial proceedings.
What Are the Advantages of Mutual Consent Divorce?
The main advantage of this procedure lies in its speed.
When spouses reach an agreement quickly, the divorce can be finalized in a few weeks, compared to several months in the context of contested proceedings.
This solution also limits the costs associated with longer judicial proceedings and preserves a constructive dialogue between the former spouses.
Finally, it offers greater confidentiality since the spouses are no longer required to appear before a judge, except in cases provided for by law.
This approach promotes more peaceful separations, especially when children are involved.
Why Consult a Family Law Attorney?
Even if the procedure is simplified, mutual consent divorce remains a legal act with significant consequences.
The division of assets, tax implications, children’s rights, the compensatory allowance, and financial obligations between the former spouses require precise analysis.
The lawyer intervenes to secure the entire procedure, advise their client, and draft an agreement that complies with legal requirements. Their role is also to anticipate difficulties likely to arise after the divorce to limit any risk of subsequent litigation.
Cabinet CARREZ Accompanies You in Your Amicable Divorce
Mutual consent divorce is currently the fastest solution when spouses agree on the consequences of their separation. However, the apparent simplicity of this procedure should not mask the legal, financial, and family stakes involved.
Cabinet CARREZ supports its clients at every stage of their amicable divorce. After a personalized analysis of their situation, the firm ensures the protection of their interests, the drafting of a legally secure agreement, and compliance with all formalities required by the Civil Code.
Being accompanied by an experienced family law attorney allows you to approach this stage with peace of mind, preserve your rights, and permanently secure the consequences of the separation.
