Now that France has created an out-of-court divorce option, travel to Paris could be a ticket to your French divorce. In order to make the divorce process simpler and less expensive, France has streamlined the system, but there are some pitfalls for non-French people.
C’est la vie
In France it is now possible for couples to divorce without going through a long and sometimes expensive court process by signing a divorce agreement – but this may not be ideal for couples where one or both person is not French.
On January 1st 2017, the divorce par consentement mutuel (divorce by mutual consent) was created, allowing couples to acknowledge their consent to divorce in an extra-judicial contract without a court proceeding.
To divorce by mutual consent, it is essential that couples agree on all aspects of their divorce with the help of their respective lawyers. They especially need to settle the consequences of the divorce on their children (custody and residence), on their assets and all financial measures (alimony and compensatory allowance).
The consent reached by the couple is then set out in a divorce agreement, prepared by the parties’ lawyers. Following a 15-day cooling-off period, the divorce agreement is signed by the spouses and countersigned by each lawyer.
Once signed, the agreement is submitted to a French notaire for registration. Registration is what makes the divorce agreement enforceable in France. Signing a divorce agreement is the quickest way to divorce in France.
While the duration clearly depends on how the negotiations between the couple progress, it is technically possible to sign and register a divorce agreement in France within approximately one month.
Florida International Divorce
International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case? The answers are more difficult than people think as I have written before.
A British divorce, for instance, might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. In France, the financial disclosure requirement is weaker, each party is not necessarily required to answer detailed financial forms.
Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.
The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.
Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.
Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.
Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.
The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.
No tears and no hearts breaking
Currently it is not possible to sign the divorce agreement remotely. Both spouses and their respective lawyers need to be physically present on the day of signing.
The French National Bar Association clearly indicated, on February 8th 2019, that:
“the divorce agreement by mutual consent without a judge must be signed in the physical presence and simultaneously by the parties and the attorneys mentioned in the agreement, without substitution or possible delegation”.
International couples should however be very careful when signing a divorce agreement as not all countries recognize this type of divorce. As the divorce agreement is entered into out of court – except when a minor child requests to be heard in court – public authorities from certain countries do not recognize and enforce this type of divorce.
In practice, this means that, a couple having signed and registered a French divorce agreement, would be considered as divorced in France, however still be married in their home country/countries if local authorities refuse to register and enforce the contract.
The Local article is here.