A Mutual French Divorce
Charlotte Symes examines whether divorce by mutual consent is a safe bet or a risky move for couples considering divorcing in the UK or France
It’s been nearly three years since France introduced its new divorce par consentement mutual (divorce by mutual consent) under article 229 of the French Civil Code. This was a significant change in French divorce law as it provided couples with a way of reaching a financial settlement and getting a divorce without having to involve the courts. Family lawyers and other legal advisers were concerned about the lack of judicial involvement opening the scope for unfair agreements, especially where there might be an imbalance of power between spouses or concerns about costs. However, the reality of a French court system – that is as financially stretched as it is in England –means that the divorce by mutual consent has become popular for those seeking a quick, amicable and cost-effective divorce. This process is available to all divorcing spouses living in France, which benefits couples who do not meet the legal criteria to secure the jurisdiction of the French courts. As the mutual consent divorce is not a judicial process, the legal requirements to establish jurisdiction in France do not apply. Instead of a court order being made, the parties agree and sign a private contract. Each spouse must be represented by an independent lawyer (who must also be present at the point of signature of the contract). This is an important safeguard to ensure the fairness of agreements. The agreement will then be stamped and sealed by a notaire, making it a legally enforceable document. The French notaire is a public officer appointed by the French Minister of Justice and is commissioned for public service duties. It is quite different to the role of a judge. Once the parties have signed up to the mutual consent divorce process, the only involvement of the court would be if a minor child requested to be heard by a judge, which is obviously rare. Once signed up to the process, the spouses must reach a final agreement on all issues which means they must reach an agreement in respect of their divorce, finances, parental responsibility and child arrangements.
The mutual consent divorce is a great option to avoid the court process and the inevitable stress of the associated delays and costs. However, spouses with any links to England and Wales (whether through domicile, habitual residence, nationality or location of assets) should proceed with a mutual consent divorce with caution, because there are question marks over the enforceability of this type of French order internationally. For example, there is no method of obtaining the necessary certificates required in the European regulation (Brussels II Bis) for foreign EU orders to be recognised and enforceable in England in relation to child matters and contact. The only certificate issued by the notaire is that provided for by article 39 (relating to judgments of matrimonial matters A mutual French divorce Charlotte Symes Charlotte Symes is a senior associate at Family Law in Partnership flip.co.uk Charlotte Symes examines whether divorce by mutual consent is a safe bet or a risky move for couples considering divorcing in the UK or France Proceed with a mutual consent divorce with caution, because there are question marks over the enforceability of this type of French order internationally and parental responsibility) of Brussels II Bis. There is no issue of an article 41 certificate (relating to judgments of rights of access to and return of a child). Further, there will be no certificate provided as required for enforcement under the EU maintenance regulation. One consequence is that the receiver of maintenance payments would not be able to apply to enforce the French agreement in England.
DISCLOSURE The other serious failing of the French divorce by mutual consent is the lack of exchange of financial disclosure and no judge approval of a settlement. This lends itself to the possibility of a dissatisfied spouse making an application in England for top-up under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), on the basis that they did not receive independent legal advice and or full financial disclosure. Given that the French divorce by mutual consent is not overseen by a judge, the chance of such an application in England being successful may be higher (compared to an application in England after the typical courtbased French divorce). The parties could reach an agreement that falls outside the parameters of what an English court would order taking into account all the circumstances of the case and ultimate fairness. The case of Agbaje v Akinnoye-Agbaje  UKSC13 confirms that the purpose of the top-up application in England is to alleviate “the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England”. The divorce by mutual consent in France certainly opens this door for a spouse to start secondary litigation in England, provided it is not being made only for a second bite of the cherry after the French divorce by mutual consent.
ENFORCEABILITY Where that leaves us from the English perspective is tricky in terms of advising clients considering a divorce in France by mutual consent or a divorce in England. The legal position in accordance with EU law is as follows: a divorce granted within the EU is usually automatically recognised in England if the divorce was granted in accordance with the laws of the foreign member state (ie in France). That would be the case with a divorce by mutual consent in France and so technically, the agreement, albeit a private contract, should be recognised here in England, with a certified professional translation.
Another serious concern is that by starting a divorce by mutual consent in France, the jurisdiction of the French courts is not seized. Therefore, in the case of an international jurisdiction race, there would still be a risk of one spouse attempting to issue proceedings in another country provided the conditions are met, even though the spouses had agreed to start the mutual consent divorce process. This problem highlights the importance of trust when signing up to the divorce by mutual consent; and lawyers will be obliged to advise clients of the risks.
The divorce by mutual consent leaves individuals exposed to foul play, particularly in a jurisdiction race scenario. To mitigate the risk, other options may be available to spouses: — Issue a divorce petition with the French court to secure its jurisdiction (preventing any other European country from being the first seized) in the usual way, and only then start work on a divorce by mutual consent. Once the divorce has been registered by the notaire, it is then possible to withdraw the petition that has been filed with the French courts as a protective measure only; or — Issue a divorce petition with the French court in the usual way to start court proceedings; and notify the court once the spouses have amicably reached an agreement through the divorce by mutual consent.
This would seem to be the safer of these two options, as the spouses would have a judgment sealed by the court that would be enforceable in England. The downside is that the spouses would be beholden to the French court system and, therefore, would likely wait a year to complete their divorce and obtain the judgment. We should be advising any clients with links to England, who are considering a French divorce by mutual consent, to seek professional advice in France on these options. As for the impact of Brexit, the withdrawal agreement bill received Royal Assent on 23 January 2020. Once the agreement has been ratified by the European Parliament, the UK will leave the EU on 31 January and we then enter the 11-month transition period during which time EU rules and regulations (including those relating to the recognition and enforcement of judgments) will continue to apply to legal proceedings instituted before the end of the transition period
Charlotte Symes is a senior associate at Family Law in Partnership flip.co.uk