2021 will be a year of many changes for family law pratictioners in France. Brexit will change the way cases are dealt with between France and the UK. We need to keep a close look at how things are going to evolve in the future weeks and months. Another major change to announce is that Civil proceedings in France have undergone a major "refurbishment" as from January 1st 2021.
Family law practitioners dealing with French nationals, as in many cross-border cases, will often have to deal with challenges of jurisdiction, even more so in the UK with Brexit. This is the reason why it may be helpful, without becoming an expert of French Family law, to have an understanding of how the French divorce proceedings work.
Divorce proceedings in France have seen many changes in the last few years, all aimed at trying to reduce the workload of the Courts and consequently the duration divorce cases pending before French Family Courts.
The first major change in the last few years, which certainly has had an impact on our practice, was introduced by the law 2016-1547 dated November 18th, 2016 entitled “Law aiming at modernizing the 21st Century Justice”. This law incorporated in the French Civil Code in its article 219 a new type of divorce by consent, often referred to as the “divorce without judge”.
It provides since January 1st, 2017, the possibility for parties, to divorce under French law without going through a judicial process, as long as they agree on the principle of divorce and its consequences. If this is the case, the parties can divorce by Deed signed by both of them and their counsel (representation is compulsory).
Once the Deed detailing the agreement of the parties on the divorce and its consequences is signed, the lawyers need to have it registered by a French Notary, thus rendering the divorce final.
There are of course some formalities round this type of divorce, such as a required period of 15 days for each party to have time to reflect on the agreement, but on the whole, this type of divorce enables parties to get a divorce faster than they had been able to previously.
The second change, is the one that came into force on January 1st, 2021, a year later than initially planned, and introduced by the law 2018-2022 dated 23rd March 2019 which provided for an amendment of French Civil proceedings in France, including therefore divorce proceedings. This change was motivated by the need to speed up proceedings in general, and more specifically with regards to divorce attempting to reduce the contentious side of the proceedings and therefor tensions and animosity.
For French Nationals living abroad and wishing to divorce these new proceedings are attractive, especially in times of pandemic, which has seen many proceedings at a dead end due to the impossibility to travel.
Until January 1st, 2021, and for all the proceedings initiated before that date and still currently pending, divorce proceedings were divided into to phases: the initial petition of the Court, would be followed by a “conciliation hearing” during which each party would talk with the judge alone. Once the judge had been satisfied that the marriage had indeed irretrievably broken down, he would then issue an Order called “ordonnance de non conciliation” enabling the parties to initiate the second phase dealing with all the consequences of the divorce. The main problem for French nationals living abroad, was that attendance of both parties to the conciliation hearing was compulsory: they could not proceed to the second phase, without both parties having been heard by the judge.
Since January 1st this is no longer the case for proceedings initiated after this date. The new proceedings only have one phase. There will no longer be an initial conciliation hearing. The parties wanting to divorce, are no longer required to be present, and can be represented by their lawyers in the proceedings.
Another main change is that a greater place is made for alternative dispute resolution (ADR) as a mean to reduce the workload of the Courts, but also to encourage parties to work together in finding a solution thus making the whole process less toxic.
During the first meeting with the judge, the lawyers will express their client’s intentions with regards to the way the case will be handled. The parties are offered the choice to ask for interim measures while they try and work things out using ADR and to come back to Court just to finalize their agreement, or if the situation between the parties does not permit it, to have the Judge intervene every step of the way, as it has always traditionally been done.
Great emphasis has been put on the need to have recourse to alternative dispute resolution.
Rome was not made in one day. Time will tell if it these new proceedings will achieve the goal of reducing the duration of a divorce case. Currently dates given for the initial meetings with the Family Judge are 3 to 4 months after the date of the initial Writ. However, once the pandemic sorted, we are hopeful that divorce cases will be able to be processed in a more efficient and faster manner.