Whose fault is it anyway? A French perspective on divorce by mutual consent and no fault divorce

FRENCH VERSION / VERSION FRANÇAISE

Momentum is gathering for the introduction of no-fault divorce in England, with a number of senior individuals in the legal industry adding their voices to the ranks. Last week, the Times also launched their ‘Family Matters’ campaign, in which one area singled out in need for reform was that of fault-based divorce.  It seems inevitable that the unnecessary burden of being obliged in the majority of cases to state that someone is at fault will be alleviated at some point, although how soon remains to be seen.

Among the French family lawyers, however, these recent developments may be viewed with bemusement. No fault divorce (divorce “par consentement mutual”) has been available in France since the 1970s and remains the most popular method of divorcing (in over half of cases according to recent official statistics). In fact, this method of divorce was further simplified in 2016 – in non-contested cases, with couples no longer needing to attend any form of hearing or involve the court at all. Rather, the couple (with their lawyers) can draw up an agreement which is then approved by a notary.

The advantages to this are clear - in cases without animosity, a divorce can be obtained relatively pain-free, in a quicker amount of time and without the involvement of the court (thus freeing up court time).

However, this form of divorce is not without its disadvantages. Before taking the steps to finally catch up with our neighbours across the Channel, it is important to be aware of the possible issues that may arise (most notably, with enforcement) and therefore legislate correctly to avoid these potential pitfalls in England. 

In order to explore how developments in France have been received, I spoke with Parisian lawyer Laurie Dimitrov at BWG Associés , who specialises in international family law. 

Click on the questions below to reveal Laurie's answers.

1) Do you see many clients who wish to divorce by mutual consent and has this changed over the years?

Most clients wish to divorce by mutual consent. I have not noticed a particular growing trend in this respect over my six years of practice. However, it is certainly the case if you compare the current situation with what happened a few decades ago, where there has been a definite change in mentalities towards more liberalism and the accompanying trend of the legislation, namely the 1975 and 2004 Statutes. It is too soon to know whether the latest reform, resulting from the Statute of 18 November 2016 on Modernization of the Justice of the XXIst Century, which instituted a divorce by mutual consent without a judge, will be an increasing factor to the number of such divorces by mutual consent.

What also strikes me is the significant number of cases where the divorce starts as a (sometimes very) contentious one but where the parties manage, along the way, to reach an amicable settlement and end up with a mutual consent divorce. It is of course a process in which the constructive work of the respective lawyers is key. Besides, divorce by mutual consent is the best way to create bespoke agreements to individual circumstances compared with court orders, which are often more formatted and standardised decisions.

2) What is your opinion on the introduction of the divorce by mutual consent without a judge?

Undisputedly, this reform looks to the future by endeavouring to make a better use of the time and resources of our judges and court clerks, and to give to the lawyers an enhanced part to play.

However, given the difficulties raised by an extra-judicial divorce, especially in an international context (see question 3 below), the parties may sometimes be compelled to resort to further legal advice, or even to longer and more costly judicial proceedings than used to be necessary, both:

• in France - when the couple is not entitled to resort to this new type of divorce in France and therefore needs to go through a contentious divorce, or when the couple will in fact favour such a contentious divorce, because it will lead to a proper judicial decision which is more likely to be recognised and enforceable in the countries where they have interests; and/or
• abroad - to ensure that their divorce and all its consequences will be recognised and enforceable in foreign countries.

In this context, it is not necessarily more effective in terms of cost or time for the parties involved, especially as it is no longer possible for the spouses to retain a single common lawyer for both of them (which was previously the case for divorce by mutual consent).  

3) Do you foresee any problems with this type of divorce, particularly from an international angle?

Unfortunately, I do. In my opinion, the difficulties from an international perspective are twofold:

• The first has to do with the access to the divorce by mutual consent : in the current interpretation of the Statute given by the Circular of the Department of Justice, some married couples will purely and simply not be entitled to divorce by mutual consent (neither judicially nor without a judge), even though they have a strong connection in France.
  
  Indeed, the Circular considers that, applied to extrajudicial divorces, Article 5 of the Rome III Regulation (determining, under French international private law, the applicable law to the principle of the divorce) should be limited to its first three possibilities of choice: law of the State of the spouses’ habitual residence or last habitual residence provided one of them still resides there, or of the spouses’ nationality.
  
  It thus excludes the last choice provided by the Article in favour of the “law of the forum” and furthermore considers that, to resort to this new type of divorce, French law needs to be applicable to the principle of the divorce.
  
  This means that two foreigners will not have access to a mutual consent divorce in France, whether it be judicial or not, even though one of them is habitually resident in France, since:
  
  1) they will not be able to elect French law to apply to their divorce; and
  2) they will not fall within the scope of the exceptions provided for judicial divorces either.
  
  This is quite shocking given it is a case where French courts had jurisdiction to pronounce their divorce by mutual consent under the Brussels II bis Regulation. At the time, this divorce was judicial and it would have jurisdiction to rule on their contentious divorce - under the condition that such residence has lasted at least one year if the French resident is the petitioner.
  
  Of course this is merely the interpretation of the Circular, which is not legally binding as such, and the authority of which can de disputed, but it is still the current official interpretation of French law given by the Department of Justice.
   
• The second set of difficulties concern the recognition and/or the enforcement of the principle of the divorce and its various consequences (towards children and finances) in foreign countries.
  
  The principle of the divorce should be recognised within the European Union, or more specifically within the EU Member States to the Brussels II bis Regulation.
  
  However, outside the scope the European Union, it is uncertain whether such a divorce, which is not pronounced by a judicial decision, will be recognised in foreign countries. This will depend on the rules of international private law of each country.
  
  Besides, even within the European Union, the recognition and enforcement of the consequences of the divorce (e.g. regarding parental responsibility, maintenance and the splitting of the assets) is likely to raise significant issues, and it will sometimes require that the parties initiate judicial proceedings in the relevant countries to obtain such recognition or enforcement. In this respect, the time and costs that the parties may have saved in France, will need to be dedicated to foreign proceedings (and sometimes will be surpassed...).
  
  Therefore, in some instances, the parties will need to resort to an artificially contentious divorce, either to be able to divorce in France, or not benefit from a fully efficient decision abroad. 

4) What do you think of the developments in England towards no fault divorce?

I was quite surprised when I first learned that English law did not provide for “no fault divorces”.  It seems old-fashioned to me and French and English laws are quite antagonistic in this respect.

Under French law, you are not allowed to put forward a ground for the divorce during the first step of contentious divorce proceedings (that is from the first petition for divorce until after the “conciliation hearing”), whether it be a fault or another less incriminating ground (for instance the irretrievable breakdown of the marriage on the basis of a two-year separation). The rationale behind that prohibition is to pacify the proceedings and to give the parties some time to agree on a common, more consensual ground (e.g. the acceptation of the principle of the divorce).

Contrary to this, my understanding is that, under English law, you put forward a ground for the divorce at the very beginning of the divorce proceedings, even though the “fault” alleged can be quite minimal.

I feel this is probably not the most peaceful way to initiate divorce proceedings and I therefore perceive the current trend towards no fault divorce in England as a salutary progress in this regard.

At a time where there is so much need for conciliatory solutions, it seems quite pressing to introduce no fault divorce.

In summary

We must also of course take into consideration the impact that Brexit will have on cross-border family disputes further down the line, which may add further issues to those already highlighted above in respect of litigation and enforcement. It remains to be seen what is decided in terms of the relevant EU legislation, but it is clear that real thought needs to be given to the potential pitfalls – thought which may not have been given to the introduction of extrajudicial divorces as explained by Laurie above. 

The “ease” of divorce is but one small consideration for divorcing couples with Anglo French connections, whether divorcing by mutual consent or otherwise. It is important to understand the differences between jurisdictions and the impact of cultural considerations, cost and litigation risk among other issues. For further details on this, you may also be interested in reading our previous blog - Anglo French divorces – making the right choice about where to divorce.

Most importantly, individuals need to seek relevant legal advice. Having both French and English lawyers on hand to provide relevant information from the outset to make the best choices for their circumstances is vital, ultimately providing the best chances of a successful outcome.

Our family team provides specialist expertise to separating couples and families with Anglo-French connections and our team is widely recognised as the leading service of its kind in England. Our team includes a number of French speakers, who regularly provide advice in French and in cases which sometimes involve proceedings in more than one court or jurisdiction. Please contact Colleen Nwaodor or Charlotte Bradley for further information.