The New Divorce by Mutual Consent in France: Recognition and Risks of Post-divorce Litigation in Common-law Countries: the Examples of England and the United States

• Publication year: 2017
• Author: Delphine Eskenazi, Carmel Brown, and Jeremy D. Morley

The New Divorce By Mutual Consent in France: Recognition and Risks of Post-Divorce Litigation in Common-Law Countries: The Examples of England and the United States

Delphine Eskenazi, Carmel Brown, and Jeremy D. Morley

Delphine Eskenazi is admitted to practice before the New York and Paris bars. She has developed a specific expertise in international family law, particularly in French-US and cross-border litigation. She also acts as an expert on French legal questions before foreign courts. She is a lecturer in several international conferences on family law and a member of the International Academy of Family Law.

Carmel Brown is an assistant solicitor in the family team at Irwin Mitchell in London, England. She deals with a wide range of children and family matters frequently with international elements. Ms. Brown has particular experience in dealing with complex financial disputes, often including difficult trust, tax and company issues.

Jeremy D. Morley, a New York attorney, concentrates solely on international family law. He works collaboratively with co-counsel throughout the United States and globally, is frequently an expert witness on international family law issues and lectures on international family law. He is the former co-chair of the International Family Law Committee of the International Law Section of the American Bar Association. He is a also member of the International Academy of Matrimonial Lawyers. Mr. Morely is the author of "International Family Law Practice,"(Thompson West 2016), a leading treatise for U.S. practitioners, and "The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer,"published by the American Bar Association.

Introduction

Beginning on January 1, 2017, French divorce law has been the subject of a historic reform: In the event of a full settlement between the spouses, their divorce agreement is no longer reviewed and approved in court by a French judge. Rather, the agreement is merely recorded in a private contract signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. Instead of a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become purely administrative.

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislature, with a blatant disregard for the high proportion of divorces with an international component in France. The most important risk of this new procedure is that a French divorce by mutual consent may not be recognized or enforced in many foreign countries, in particular common law countries, thus significantly multiplying the risks of post-divorce litigation. From an amicable divorce to an acrimonious post-divorce, the possibilities to re-litigate have increased significantly with this new French administrative divorce.

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In this article, Delphine Eskenazi, a lawyer practicing in France and also admitted to practice in New York, will first discuss the main provisions of this new French administrative divorce by mutual consent. Carmel Brown, a solicitor practicing in England, and Jeremy Morley, a lawyer practicing in the United States, then consider these issues of recognition and post-divorce litigation following a French administrative divorce, in their respective countries of practice.

I. What is the New French Divorce by Mutual Consent? A. The Lack of Control or Involvement of the French Courts

In accordance with new article 229 of the French Civil Code, spouses who agree on the principle of the dissolution of their marriage as well as on all of the consequences of such dissolution can record their agreement in a contract without the need to obtain the review or approval by the French courts. The process is simple: the parties' counsel prepare an agreement which is then signed by the spouses and their attorneys together. After the expiration of a mandatory fifteen-day reflection period, the agreement is sent by either party to a notaire, who will register it and keep an official record. A French court may review the agreement only if a minor child requests to be heard by the judge.

In the absence of a review by the courts, there is no requirement for the spouses to have any connection with France to use this new method of divorce. As a consequence, certain authors predict that "France will become the new Las Vegas of divorce¹"

The other consequence of this purely French administrative divorce is that no independent third party will ensure that the spouses have freely consented to the...