On 1st January 2021, the French divorce procedure underwent a major reform intended to modernise and simplify the process. This reform came about in response to the length of time it takes to process a divorce case, something that has been criticised by the general public and law professionals alike. Until now, it took an average of two years to get a “no fault” divorce, and six more months for an “at-fault” divorce or a divorce on the ground of separation for at least two years (divorce “pour altération définitive du lien conjugal”), not counting the time required for any possible appeal procedures.
A summary of the previous divorce procedure
Until now, the procedure was divided into two steps, requiring two referrals to the family court:
1. Firstly, there was a compulsory conciliation phase, introduced by a petition for divorce, the purpose of which was to set out provisional measures for the duration of the proceedings;
2. Then, a substantive phase, introduced by petition through an “assignation” (summons) or a joint petition within 30 months of the non-conciliation order and which resulted in a divorce decree that finalised the divorce and set out the definitive ancillary measures.
For all proceedings initiated before 31st December 2020, these rules continue to apply.
The major contributions of this reform to divorce proceedings
The reform, introduced by Act No. 2019-222 of 23 March 2019, significantly changed the procedure for contentious divorces, but also affects the typical duration of a divorce on the ground of separation for at least two years.
There are several important changes to note:
- The procedure now consists of only one phase, which is introduced by joint petition when there is an agreement between the spouses on the principle of divorce, or through an “assignation”.
- From the outset of the proceedings, the petitioner can indicate the basis of his or her application for divorce (which was previously only possible in the second stage of the proceedings), provided that the application is based on acceptance of the principle of marriage breakdown or a divorce “pour altération définitive du lien conjugal” (previously 2 years separation).
- Failing this, the petitioner can only base their application for divorce at the stage of their first submission on the merits.
- With the new procedure, the spouses may accept the principle of marriage breakdown at any time during the proceedings. This agreement will then be formalised in a lawyer’s deed.
- The petitioner must set a hearing date with the registry of the court and outline this in the summons they serve on the defendant.
- The defendant must then appoint a lawyer within 15 days, or two months if the defendant lives abroad.
- Unlike the previous rules, it is now compulsory for each spouse to have a lawyer from the beginning of the procedure.
- The spouses can then be represented by their lawyer and, therefore, their presence is no longer compulsory at the first hearing (unless the family court judge requires it).
- The conciliation attempt hearing, which was previously mandatory, no longer exists Instead, the first hearing, called the “orientation and provisional measures hearing”, is intended to give direction to the case by setting a procedural timetable and to rule on provisional measures, unless the parties waive their right to request them.
- From now on, the parties may agree to set the procedural timetable together by entering into a participatory agreement for the purpose of preparing the case. Failing that, the judge himself sets the framework for the exchanges between the parties.
While the grounds for divorce remain the same – i.e. the spouses may still base their divorce on acceptance of the principle of divorce, definitive severing of the marital bond after a period of time of separation, fault or divorce by mutual consent in certain cases (usually the spouses must go through a divorce by mutual consent without a judge) – the reform has made a substantial change by reducing the period of separation for a divorce “pour altération définitive du lien conjugal” to one year, instead of two years under the old procedure.
Now, this period is assessed at the date of the “assignation” (summons) if the basis of the claim is specified in the document initiating proceedings, or at the date of the divorce ruling if the basis of the claim is indicated in the first pleadings on the merits.
The changes, particularly the elimination of the two-stage procedure and the shortening of the period of separation required for divorce, are intended to allow spouses to get decisions made more quickly.
In practice, the speed of the procedure will obviously depend on the behaviour of the parties and whether or not interim measures are requested, including the appointment of an expert to carry out an examination of the spouses’ situation, but also the various possible appeals against the judgments made.