Since the reform of 2007, divorce law has changed profoundly : the procedures were substantially simplified, the terms were shortened and above all the fault-based divorce has disappeared.
The fact remains however that the decision to introduce a divorce proceeding is never easy, namely in view of the consequences it entails, not only on a patrimonial level but equally in respect of the children, if any, of both spouses.
There are two ways to divorce.
The divorce by mutual consent (amicable divorce)
This is an actual contract between two spouses : they agree to deal together with all existing problems, by drawing up an agreement, that is subsequently checked by the Court.
The first step of a divorce proceeding by mutual consent consists of drafting the « prior agreements », that is the agreements in which the spouses agree on the whole of the consequences of their divorce.
These agreements contain two principal parts :
- The division of assets, qualified as « transaction settlement », that settles the destiny of all goods belonging to the spouses.
- The divorce agreement, that concerns mainly the following points :
- The place of residence of each spouse, both during and after the proceedings
- The whole of the decisions concerning the children of both spouses (parental authority, accommodation arrangements, parental contribution by each of the parents,…)
- The determination of contingent alimony between spouses
- The terms and conditions of acceptance of the cost of the proceedings
- The choice of the competent Court
- The regulation of the successions rights (will the spouses remain heir of each other in case of the death during the procedure ?)
Once these prior agreements are drafted and signed by the two spouses, the procedure will be introduced before the competent Court of First Instance via a petition.
The spouses will then have to appear twice before the Court. However, if the spouses prove that they are separated for more than six months when filing the petition, they will have to appear only once.
The Court will then pass judgment which will be transcribed in the Civil Status Registry of the municipality where the spouses were married.
The divorce due to irremediable breakdown :
The law of 27 April 2007 has thus substantially modified the matter of divorce.
Under the previous legislation, the divorce was generally the sanction of a fault (adultery, grave insults,…) which was pronounced against one of the spouses.
Currently, the fault has disappeared as a cause of divorce and the notion of « irremediable breakdown » serves as basis of divorce.
1) What is meant by « « irremediable breakdown » ?
Article 229 of the Civil Code states that : « The breakdown is irremediable when it makes the pursuit of conjugal life and the renewal of this life between spouses reasonably impossible ».
It can be proved by all legal means (with the exception of oath and confession), namely when a term during which the spouses are factual separated, has expired.
In concrete terms, 3 hypotheses may be considered :
- the irremediable breakdown is proved by one of the spouses (article 229 §1 Civil Code)
- the existence of a factual separation for over a year, when the request is made by only one spouse (article 229§3 Civil Code)
- the existence of a factual separation for over 6 months, when the two spouses agree to divorce (article 229§2 Civil Code)
2) The request made by one spouse
In that case, the request may be based :
- on the misconduct of the other spouse (article 229§1 Civil Code)
- on the factual separation for more than one year (article 229§3 Civil Code)
In this last hypothesis, the period of separation of one year leads automatically to divorce, regardless of the position of the other spouse.
When the spouse plaintiff cannot provide proof of a factual separation for over more than one year on the day of the audience of introducing the divorce proceedings, the judge will determine a new court attendance at a second audience which will take place a year later or immediately after the expiration of a period of a year of separation (articles 229 §3 Civil Code and 1255§2 Judicial Code ).
3) The request is made jointly by the 2 spouses
The required period of separation is 6 months.
When the spouses are not separated for over more than 6 months at the time of introducing the procedure, the judge determines a court date:
- either immediately after the expiration of the 6-month period,
- either 3 months after introducing the request
4) Urgent and temporary measures during the divorce proceedings
The president of the Court of First Instance, sitting in summary proceedings, is competent to hear and decide urgent and provisional measures which have to be taken during the divorce proceedings (article 1280 Judicial Code ).
In general, it is in fact indispensable to settle the crisis situation of the couple provisionally: which spouse will occupy the conjugal residence during the divorce proceedings? Should an alimony be paid to one of the spouses ? What about the hosting arrangements of the children? …
It is important to emphasize that the decisions, taken by the judge in summary proceedings with regard to the children (unlike all other requests), are not provisional and thus remain applicable even when the judgment of divorce has become definitive.