This guide highlights the route which your divorce proceedings will likely follow.
1.Initial meeting at our office
We shall examine : a) Your current family situation (your place of residence, the place of residence of your spouse, if and when you separated from your spouse, place and date of mariage, number of children) Hopefully you will be able to produce your birth certificate, those of your children and your mariage certificate and any pre-nuptial agreement you may have. b) Your current Financial situation (your current income, outgoings, if possible the the income and outgoings of your spouse) Hopefully you will be able to produce your tax returns, salary slips, récent bank statements and also bills and évidence of your outgoings such as utilities, rent, insurance, etc) c) We should have sufficient éléments to discuss at this point with you, your various options and stratégies : (i) Whether it is or not in your best interests to initiate proceedings in France, and whether you are éligible to do so Under the various EEC laws and régulations. (ii) Which type of divorce procédure is best suited to your circumstances (see phase Two below for definitions of the different types of divorce, except for divorce by mutual consent) (iii) We may also advise as to whether a judicial séparation (séparation de corps) rather than a divorce is préférable to your particular circumstances. At this stage, we may also advise on any other necessary issues such as emergency measures with respect to children, a spouse’s acts of physical violence, etc)
2. The « Requête »
This particular document is a request to the Family Court Judge to appear before him (we will refer to the hearing as the ‘First Hearing’ or audience de conciliation) and rule on the following : – The appointment of a family counsellor if you and your spouse both wish to have Relationship counselling. – Leave to file divorce proceedings and start Phase Two of the proceedings – Interim measures such as parental rights and obligations with regard to children, Financial support of the spouse and of the children, which spouse temporarily manages and keeps joint property and chattels during the course of the divorce proceedings. – Leave for the spouses to live in separate residences and which spouse is entitled to remain in the family home during the course of the divorce proceedings. – Whether the spouse remaining in the family home during the course of the divorce proceedings must pay rent to the other spouse for his or her sole use of the house. – The appointment of a notaire and or expert (accountant for example) during Phase Two. The notaire or expert assists the court in determining a final settlement proposal with regards to the spouse’s assets (projet de liquidation) : disposal of assets, lump sum settlements and or monthly alimony. The notaire or expert may be chosen by the parties or, failing an agreement, the judge will make the choice. The Requête is an obligatory step to the divorce proceedings, regardless of which type of divorce you may decide to choose. Remember, it is not yet the issuance of divorce proceedings but rather a request to the court for leave to issue divorce proceedings and proceed to Phase Two. The requête must be drawn up in french (a translation is obligatory if the receiving spouse lives abroad). It must be accompanied by a copy of the mariage certificate, the family’s birth certificate also (which if in English must be translated into french for the court) Should you and your spouse decide on a divorce by mutual consent each with the same lawyer, the reuqête will be a joint document and with it there must be a Convention (written agreement) setting out the terms youhave agreed to regarding the interim matters mentionned above. The issuing lawyer will send the requête and the documents to the court who will then register
PREPARING FOR THE FIRST HEARING :
The first hearing introduced by the requête is a meeting between the judge, the spouses and their lawyers. As you read above (Step 2) Financial matters concerning living arrangements for the duration of the divorce proceedings (which may take 6 months to 1 year on average) will be discussed and your lawyer needs to have a good understanding of both your spouse’s Financial situation and yours. Under french law, spouses have the obligation to help each other (obligation de secours) and the better off spouse will have to contribute financially if the other cannot survive independently with his or her resources. Each spouse’s financial incomings and outgoings must be disclosed to the other side in advance of the hearing through their lawyers. Please inform your lawyer if you will be needing an interpréter : during the course of the first hearing, the judge will need to speak to you directly for a few minutes. (see step 4 below)
THE FIRST HEARING :
This is the first and only hearing you will normally attend during the whole course of the divorce proceedings. The second hearing is only attended by the lawyers. This hearing has the aims explained in step 2 above. It is sometimes referred to as an « audience or tentative de conciliation » because the judge will give a private audience to each spouse and question them as to their true intention to divorce and – in theory – « attempt to reconcile them ». The entire hearing is held in chambers, not in an open court. – First make sure you take something to read while waiting for your turn as there may be a long wait ! – The clerk will call each spouse separately into the judge’s office without their lawyers. As said above, this is where the judge will ascertain whether each of you are truly consenting to divorce and whether you have each understood the consequences of divorce proceedings. – once both spouses have been heard, each spouse and their lawyer re enter the judge’s chamber. – the lawyer who has issued the requête will open the debate. He will explain his client’s situation, limiting the debate to the topic of the day (the interim measures) and will not go into the causes for the divorce (unless it involves grounds for refusing access or visitation rights regarding the children in cases of violence particularly) – The spouses will have the opportunity to comment AFTER each lawyer has exposed his client’s case. Do not interrupt the opposing lawyer when he is talking if you can help it. – The judge will ask each spouse if he or she is willing to sign a document called a « Procès-Verbal » which is a record of your agreement to the issuance of divorce proceedings for Phase Two. It is a very important step. By signing this document, you waive away your right to insist on the application of the rule of 2 years’ effective separation before divorce proceedings can be issued. By signing the document you always waive your right to obtain a fault based and to claim for damages and procédural damages Under article 700 of the Code of Procedure. Once you have waived those rights you may not reverse the procedure and change your mind – even by way of appeal, so consider this question carefully before coming to the hearing. – At the end of the hearing the judge will mostly reserve judgment (called an ONC for Ordonnance de Non Conciliation) and give a date for his ruling (about 2 weeks)
RECEIVING THE JUDGMENT :
As soon as you receive the judgment (either by registered post or delivery by Bailiff or Huissier) you must inform your lawyer immediately. You only have 15 days to lodge an appeal starting from the date the huissier served the documents on you and your lawyer will not know of the date unless you tell him.
Phase two deals with the consequences of the divorce with the issuance of the assignation as opposed to the requête. In the assignation, the lawyer will state whether the spouse wishes that the interim measures with regard to the children be continued and how he or she intends to settle the family assets and dispose of them. The “prestation compensatoire” : this is where the judge rules that by reason of the disparity of means between the spouses, the better off spouse must compensate the other with a lump sum settlement which can be paid over a maximum term of 8 years. Criteria for setting the prestation compensatoire : relative incomes, ages of the spouses, relative pension rights. It is also at this stage that a décision must be made as to the type of divorce you wish to pursue : – acceptance of the principle of the breakdown of the mariage ; or – irretrievable impairing of the mariage tie ; or – a fault based divorce ; or – divorce by mutual consent. For all types of divorce, except by mutual consent, the judge will then consider the pleadings of both sides and make his ruling. Once the divorce has been pronounced, if there is no appeal, the lawyer must then exchange with the other side a certificate signed by the parties that they do not intend to appeal. The lawyer will then send a copy of the judgment of divorce to the Mairie which officialised the divorce (if in France) and ask them to transcribe onto the mariage certificate the fact that the spouses are divorced. You are now officialy divorced and the proceedings have ended.