Out Of Court Divorce In France: Will It Work?

Date: December 1st, 2017 - Written by: Brookman Solicitors

 

French divorce law changed this year. A new article 229 in the French Civil Code means couples that agree to a French divorce can now end their marriage without any judicial intervention at all. An agreement, signed by lawyers for both spouses, is sufficient to formalise the divorce. On the face of it the development would seem to make divorcing in France more straightforward than in England. But some commentators are already pointing out that the new ‘divorce by mutual consent’ in France is not without risk.

As international family lawyers Brookman Solicitors in London regularly advises individuals based here and in France about divorce and related matters.

Where Is The Best Place To Divorce? France V England

London is sometimes referred to as the sixth biggest French city – 250,000 French nationals live here. And according to UN figures in 2015, 190,000 UK-born people now live in France.

Often clients ask us where is the best place to divorce. An English couple based in France may be able to divorce in England or France. Similarly a French couple in London or elsewhere could potentially start proceedings in either jurisdiction. But because both countries apply different rules to financial settlements the outcome can be very different depending on which country deals with the divorce. English courts for example have a reputation for favouring the financially weaker spouse.

An added complexity is that the country that receives a divorce petition first – provided it has the legal jurisdiction to deal with the case – will decide all matters. This means that there is often a ‘race’ between spouses to issue a divorce petition in one country over another.

Could the recent development in French divorce law change the way we approach divorces where a couple has the option to issue proceedings in either France or the UK?

How Does The New French Divorce Procedure Work?

The new method of divorce in France is for divorce by mutual consent. In summary the procedure is as follows:

  • Both spouses reach agreement on all matters
  • The agreement is set out in a private contract after each side has received separate legal advice
  • The parties and their respective lawyers sign the agreement
  • Following a fifteen-day cooling off period the agreement is registered with a French notary. This means it is enforceable under French law

Because of the simplicity of the procedure more people may wish to issue petitions in France rather than England or elsewhere. Because there is no requirement for a couple to have a connection to France in order to instigate the new divorce procedure there, some believe it could lead to a free-for-all with France becoming a kind of Las Vegas-style ‘quickie’ divorce centre.

Criticism Of The New French Divorce

The new system has critics, with family law specialists highlighting a number of potential flaws:

  • The lack of judicial oversight means one side may accept an agreement that is not in his or her interests just to avoid a long divorce process
  • There is no requirement for full financial disclosure so someone could agree to a divorce without understanding their real financial entitlement
  • The new divorce settlement is effectively a private contract. So it could be argued that there is no point at which the French courts use their jurisdiction. Would it be open to a dissatisfied spouse after signing a divorce contract under the new French procedure to subsequently initiate proceedings in an English court?
  • Under the Matrimonial and Family Proceedings Act English courts have a discretionary power to order a financial settlement even when one has already been reached elsewhere

Whether these criticisms are justified remains to be seen. The new French law is still in its infancy. But it does show some of the complex issues that arise when divorcing abroad. If you have any concerns about where to issue a divorce petition or on the divorce process generally please call us on + 44 (0)20 7430 8470 or contact us online. We offer specialist advice on divorce with an international element.

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