Divorce by mutual consent is a form of marriage dissolution based on complete agreement between the spouses, both on the principle of separation and on its consequences.
This method of divorce, which is both rapid and amicable, was modernized by law no. 2016-1547 of November 18, 2016, introducing, in particular, an out-of-court procedure.
Although simplified, this divorce remains rigorously framed by legislation to guarantee a balance between the freedom of the parties and the protection of their interests, as well as those of the children.
1. The main features of divorce by mutual consent
Divorce by mutual consent is distinguished by the absence of conflict between the spouses.
The parties agree both on the breakdown of the marriage and on the terms of its effects (division of property, custody of children, compensatory allowance, etc.).
The procedure can be :
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- Extrajudicial: Since January 1, 2017, spouses can divorce without going before a judge, provided that no minor child asks to be heard by a magistrate and that neither spouse is placed under a legal protection regime.
- Judicial: If a minor child asks to be heard, or if other circumstances make it necessary, the spouses must refer the matter to the family affairs judge.
2. The advantages of divorce by mutual consent
This form of divorce offers several significant advantages for the spouses:
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- Speed: The out-of-court procedure means that a divorce can be finalized in a matter of weeks, provided that the spouses agree on all points.
- Reduced cost: By avoiding litigation and a court hearing, costs are limited. The cost of filing the agreement in the notary’s office is set at €49.44 inc. tax. Other costs include : lawyers fees, notary fee and taxes in case the assets to distribute include real estate.
- Simplicity : The absence of conflict simplifies the process and limits emotional tensions, while allowing the spouses greater autonomy in negotiation.
3. Requirements for divorce by mutual consent
To benefit from this amicable procedure, certain conditions must be met:
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- Total agreement of the spouses: The spouses must agree on all aspects of the divorce, including the division of property, child custody (if applicable) and any compensatory payments.
- Mandatory assistance by lawyers: Each spouse must be assisted by his or her own lawyer to guarantee free and informed consent.
- Absence of legal protection : Extrajudicial divorce is excluded if one of the spouses is under guardianship, curatorship or safeguard of justice.
- Informing minor children: If the spouses have minor children, these must be informed of their right to be heard by a judge.
4. Legal implications for the spouses
A) Distribution of assets
The liquidation of the matrimonial property regime is an essential stage in divorce by mutual consent.
The spouses must draw up a liquidation statement listing and distributing their assets, whether joint or undivided.
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- In the case of real estate, a notary is required to formalize the liquidation and carry out the land registration formalities.
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- The spouses may also decide to maintain certain assets in joint ownership, but this requires a specific agreement to organize the management of these assets.
B) Custody of children
The terms and conditions for the exercise of parental authority must be defined in the divorce agreement, including the children’s habitual residence, visiting and accommodation rights, as well as the contribution to their maintenance and education.
In the case of alternating residence, it is recommended to detail the practical aspects to avoid later conflicts.
5. A strict framework to protect the parties’ interests
Although the procedure is amicable, it is governed by strict rules to ensure fairness between the spouses and protect the interests of the children:
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- The notary checks that the agreement complies with formal requirements, and that it has been signed after the 15-day cooling-off.
- Protection of children : If the agreement does not respect the interests of the children, out-of-court divorce is excluded and the judge must intervene to examine the situation.
Conclusion
Divorce by mutual consent is the preferred option for spouses wishing to end their marriage quickly and peacefully. However, the law imposes a rigorous framework to ensure that the interests at stake are protected. This form of divorce strikes a balance between simplifying procedures and respecting the rights of both parties, offering a solution that is suited to many family situations.