Divorce without a judge not always recognized outside France

Dsince 1er January 2017, couples who agree on the principle of a divorce and its financial consequences no longer have the right to go to court. It is a notary, and no longer a judge, who must enforce their divorce by mutual consent – ​​unless a minor child asks to be heard by the magistrate. This reform was mainly designed to declutter the courts.

In fact, the number of decisions that family court judges have rendered, in matters of mutual consent, has plummeted (71,933 in 2016, 33,457 in 2017, 283 in 2018, 94 in 2019, 65 in 2020), while the number of agreements filed with notaries has increased (51,079 in 2019, 52,601 in 2020, 71,144 in 2021), as indicated in a report by the High Council of Notaries in July 2022.

However, the new divorce without a judge is not suitable when the couple presents elements of“foreignness” – nationality, residence or real estate abroad. The lawyers of the spouses should then advise against it, even if it is faster. But they do not always have the reflex, as the following case shows.

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In September 2017, Mr.me X, Franco-Algerian, instructs a lawyer, Me Y, to prepare a divorce agreement, together with her husband’s lawyer. On January 9, 2018, the agreement was filed with a notary and Mr.me X pays the balance of his fees, 3,000 euros. Alas, the court of Oran (Algeria) refuses to recognize it, because it was not pronounced by a judge. He judges, on April 4, 2018, that the divorce pronounced by a notary is contrary to Algerian public order.

Refund of fees

Mme X then disputes the amount of the fees she paid to the President of the Paris Bar, who orders the lawyer to reimburse them. The latter appealed, protesting that her client had obtained custody of her minor daughter in France, as well as the father’s contribution to her maintenance. On January 16, 2023, the Paris Court of Appeal reversed the President’s decision. However, if the ex-husband moves to Algeria, Mme X will no longer have any possibility of compelling him to pay his financial contribution.

As of 2017, Mr.e Charlotte Butruille-Cardew, a specialist in international divorces at CCBC, warned the chancellery of the dangers of diverted divorce, because it “do not travel”. Many countries do not recognize it, as shown by the JaFBase site, created by a magistrate, Cyril Roth. Since 1er August 2022, the European regulation Brussels II ter (articles 2, 3 and 65) allows its circulation within the European Union. But it does not concern measures relating to minor children, pensions or compensatory benefits.

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