Divorce procedure

France

The rules governing the divorce procedures were altered by the law of the May 26th 2004 which is coming into effect the 1 {{er}} January 2005. The ambition of the legislator was then to simplify the divorce procedure to make it faster, effective and especially to avoid conflict situations. The various types of divorce which until were partitioned there (assent mutual, requested/accepted or on double consent, rupture of the common life, fault) are more open with a broader possibility to pass from a type of divorce to another.

The Judge with the family businesses of the Court of Bankruptcy of the place of residence of the parents or residence of the family when the parents are already separate (i.e. of the relative who assumes the effective lodging of the children) is qualified to only judge the divorce.

The " term; garde" had been withdrawn from the texts and had been made obsolete by the law n° 87-570 of July 22nd, 1987 of Claude Malhuret. He was considered unsuited to the installation of the parental authority joint and obsolete as regards child welfare. The law of May 26th, 2004 was thus built with the same spirit, the legislator using the terms residence and lodging, more capable to define the parental responsibilities in the interest for the child.

Cases of divorce

divorce by consent : The procedure is reduced to only one audience in front of the Juge with the family businesses, instead of two previously. However, if the file seems incomplete at the time of this audience, the judge can decide to return the business to a later audience.

divorce on accepted request : It is the divorce which will be selected as the couple are of agreement on the principle of the divorce but cannot agree on its consequences for the children or the liquidation of the inheritance.

one of the couple seizes the Judge to inform him of its wish to divorce without having to be justified or be explained on the reasons of its step.
a first audience will take place and if the other unites, in the presence of its lawyer, known as with the Judge which it also wishes to divorce, the principle of the divorce will be final.
the agreement of the husbands, assisted of their respective lawyer, could be noted by the judge constantly of the procedure. The Judge will rule then on the consequences that the couple will not have been able to decide amicably.

divorce for final deterioration of the marital bond : it is marked if the husbands have been separate for at least 2 years at the time of the assignment in divorce. That means that even if you already started a divorce procedure and that you were convened with the audience of conciliation, it will be enough to wait two years before making deliver the assignment divorces it so that the divorce is marked.

divorce for fault : Its vocation is to answer the particularly serious cases of faults, mainly at the time of marital violences, of insults, slanderings or defect of participation in the family life. The law detaches from the fault the fate of the financial questions: the exclusive wrongs will not systematically any more deprive the “faulty” spouse of the right to obtain a compensatory service, which can appear all the same morally shocking but is less when it is considered that the granting or not such a service depends on the appreciation of the judge.

the passage from one divorce to another

the passage to the divorce by consent: The husbands can, constantly of the procedure, to ask the judge to note their agreement and to present a convention to him regulating the consequences of their divorce.
the passage to the divorce on accepted request: The husbands can, constantly, make note with the judge their agreement on the principle of the divorce.

Phases of the divorce procedure

The recourse to a lawyer is obligatory.

Pour the divorce by assent mutuel, the requests and agreements are written by the lawyer and are signed by the couple. There is not that only one audience of divorce which takes place in the office of Juge.Mesure faster than the others.

Pour three other divorces: the single request in divorce

the husband or the wife deposits via her lawyer a request (a request) with the Judge to inform him of its wish to divorce without specifying the case of divorce chosen, nor the reasons or the objections.
the two husbands are then convened with an audience of attempt at conciliation in front of the Judge with the family businesses, phase obligatory.
at the time of the conciliation, the judge can encourage the husbands to present a draft Regulation by amicable agreement consequences of their divorce; to designate a professional qualified to draw up an estimated inventory of the goods, or to make proposals to regulate the pecuniary interests of the husbands, or to indicate a notary to draw up a project of liquidation of their matrimonial Mode and division of their goods. It is during this audience which takes place in Chambre of the council that are decided the temporary measures i.e. the rules which will govern the relationship between the husbands throughout divorce procedure. These measurements relate to the main home of the children as well, the possible pension for one of the husbands, the contribution to education and with the maintenance of children etc If it is specified that in the vast majority of the cases these measurements will be included by the magistrate during the judgment of divorce, one will include/understand the importance of this audience and the particular need it to prepare well, documents and documents in proof with the support.
then the lawyer of one or the other of the husbands makes deliver an assignment divorces it which must, under penalty of inadmissibility, to contain a proposal for a Regulation of the patrimonial and pecuniary interests.
the parts will exchange parts and conclusions in which they expose their requests as for the causes and consequences of the divorce. These conclusions must be founded at the same time in right (to be pressed on legal texts) and in fact (i.e. on the typical location of the husbands).

Effects of the divorce

Concerning the children : the judge will have to rule on various points:

the Parental authority
the Residence of the children: in order to determine in the residence of which of the two parents the children will reside or if it is advisable to establish a alternate residence
the right of access and lodging: i.e. the periods during which that of the parents who does not have the guard will be able to return visit to his/her children or to take them for a weekend or during part of the holidays.
the amount of the Alimony which one calls the contribution to the education and the maintenance of the children.

liquidation

In the divorces by consent, liquidation and the division are necessarily regulated before the delivery of the divorce.
In the other cases of divorce, the husbands can also make note their agreements and, failing this, the judge will be able to even solve certain differences to him if it considers sufficient information carried at his knowledge. If not, the operations of liquidation and division will be regulated after the divorce.

In theory, they must be completed within one year after the judgment of divorce.
Failing this, the notary will transmit to the court an official report difficulties and the court will be able to prolong this deadline 6 months maximum.
If the operations are still not completed on this date, the notary will establish if need be, a new official report of difficulties.
After having ruled on the disputes remaining between the husbands, the court will return them in front of the notary in order to establish the state pertaining to liquidation.

fate of the Donation matrimonial S and advantages : The law prohibited to reconsider the donations between husband. Any good present (jewel, apartment, amount of money…) who was given during the marriage cannot be begun again more. On the other hand, donations of goods to come known as " with the last vivant" (registered in a will for example) are automatically revoked except contrary will of that which authorized them.

the compensatory service : Any husband, even faulty, can receive a compensatory service except if the judge estimates to have to refuse to award such a benefit to the “faulty” husband.

the service is defined according to the duration of the marriage, the age of the husbands, their respective standard of living…
the compensatory service is versed in priority in the form of a Capital, with possibility of panacher the payment of a and amount of money Usufruit, or a capital and a Rente. The payment of the capital can be spread out over 8 years maximum. On the other hand, the attribution of a revenue with life will be granted only on a purely very exceptional basis.
with died debtor husband, the payment of the service will be taken on the succession, it will thus not be transmitted to the heirs.

Belgium

There exist three procedures different of divorce:

divorce due given : this procedure is based on the fault of the one of the couple.
divorce for separation in fact of more than 2 years : the Court has noted the effective separation of the husbands for at least 2 years to pronounce the divorce.
divorce by consent : this procedure is based on the common agreement of the husbands i.e. one needs the agreement of the 2 husbands on all the points (division of the goods, Parental authority, Alimony for the children,…).

In all the cases, the divorce is not possible that if the two husbands have each one at least 20 years and if the marriage lasted 2 years.

See too

References

All the articles given except contrary mention are those of the Civil code, which can be consultable on the site Légifrance with the following address: http://www.legifrance.gouv.fr/WAspad/UnCode?&commun=&code=CCIVILL0.rcv.

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