There are 3 types of judicial divorce available to spouses who are unable to reach an overall agreement on the consequences or principle of the divorce, or if divorce by mutual consent by private document countersigned by a lawyer is not recognized in either spouse’s country of origin.
It will then be up to the family court judge to decide on the basis of the information provided by each of the parties.
The parties can then choose between three different grounds for divorce:
1. Divorce for fault :
In this case, one or both spouses accuse each other of grievances and ask the family court judge to recognize their spouse’s responsibility for the breakdown of the marriage, by granting a divorce with the spouse’s exclusive fault. If the judge considers that each spouse has committed faults, he or she may also order a divorce with each spouse sharing the blame.
2. Divorce on the grounds of acceptance of the principle of separation, irrespective of the facts giving rise to it:
Here, the spouses choose not to state their reasons for divorcing.
Even before initiating divorce proceedings, or at any time during the proceedings, they may choose to sign a « procès-verbal d’acceptation du principe de la rupture ». This signature is irrevocable, and it will not be possible, even on appeal, to go back on it to change the basis of the divorce.
The minutes are countersigned by each spouse’s lawyers, who will have duly informed them of the consequences of this act.
3. Divorce for definitive alteration of the marital bond :
When the spouses are unwilling or unable to find fault with their spouse, or to sign a declaration of acceptance of the principle of separation with him/her, they may still apply for a divorce on the grounds of permanent impairment of the marital bond after 1 year of separation (2 years for proceedings initiated before January 1, 2021).
Of course, it is not necessary to wait until this 1-year period (or 2 years for proceedings prior to January 1, 2021) has elapsed before initiating divorce proceedings.
Judicial divorce proceedings
If the situation so requires, the judge may initially rule on « provisional measures », i.e. measures that will govern the spouses’ relations with each other and with their children, as well as financial measures that will apply for the duration of the divorce proceedings (examples of provisional measures: allocation of the marital home, alimony under the duty to help, assumption of joint liabilities, arrangements for the exercise of parental authority, determination of the children’s residence and visiting rights and accommodation, alimony under the contribution to the maintenance and education of the children).
The provisional measures will come to an end when the divorce is finalized.
The judge will then rule on the grounds for the divorce (fault/permanent alteration/acceptance of the principle of separation) and the consequences of the divorce (e.g. use of the marital name, compensatory allowance, exercise of parental authority, etc.).
If the spouses choose to sign a declaration of acceptance of the principle of separation with their lawyers before going to court, they will then submit a joint petition to the Family Court, in which they will inform the judge of their agreements on both the provisional measures and the consequences of the divorce. If there are still disagreements as to the consequences of the divorce, they will ask the judge to settle them by means of separate submissions.
If the spouses do not wish, or are not yet ready, to sign a declaration of acceptance of the principle of marriage breakdown, they will refer the matter to the judge by way of a writ served by bailiff on the other spouse.
At the end of this summons, they will set out their demands to the judge, with regard to both provisional measures and the consequences of the divorce.
If the 1-year period for definitive alteration of the marital bond has not yet expired when the summons is served, it is not necessary to mention the grounds for divorce in the summons.
In any case, if the petitioner opts for a fault-based divorce, it is forbidden to mention the grounds for divorce in the initial writ of summons. It is only in the context of submissions on the merits made after the case has been referred to the judge by the placement of the writ that this ground can be chosen and the reasons developed.
Once the matter has been referred to the judge, he will summon the parties to an initial « orientation and provisional measures hearing » (AOMP).
At the end of this hearing, he will rule on the provisional measures if the parties have requested them in an Ordonnance sur mesures provisoires (OMP).
He will then refer the parties to the « mise en état » (the stage of the written procedure during which the parties exchange their arguments by way of pleadings and respond to the opposing arguments on the basis and consequences of the divorce) or directly to the pleading hearing if he considers that the case is ready to be pleaded.
The assistance of a lawyer is mandatory for all types of divorce proceedings. Each spouse must have his or her own lawyer.