Divorce by Mutual Consent: Procedure Without a Judge Since 2017

When a couple in Saint-Julien-en-Genevois decides to divorce by mutual agreement, the first question that often arises is: "Do we absolutely have to see a judge?" and the answer, since 2017, has radically changed. Before, a hearing before the family court was mandatory, even when both spouses agreed on everything. Now, the law has removed the judge's involvement for divorce by mutual consent, provided that each spouse is assisted by a lawyer. A reform that has upended the habits of Annemasse residents as well as other litigants.

This decision of the TGI de Nanterre of 8 January 2024, although made in Hauts-de-Seine, is authoritative and reminds us of the essential rules of this procedure without a judge. Why such a change? What pitfalls to avoid? And above all, how does a consensual divorce actually work today? We will dissect this case together, as I do every week for clients in the Annecy region.

For while divorce by mutual consent simplifies life, it also imposes precise steps on pain of nullity. A lawyer is not just there to initial: he must ensure that the interests of each party are protected, especially when children or real estate are involved. So, ready to understand the mechanics?

The facts: a story like any other

Mr. and Mrs. Dupont, married for 15 years and parents of two children, live in Annemasse. In 2023, they decide to separate amicably. No violent dispute, just a wearing down of the couple. They each consult their own lawyer (as the law requires) and sign a divorce by mutual consent agreement dealing with child arrangements, compensatory allowance and division of assets. Their joint lawyer (because one used to suffice before the reform? No, attention: since 2017, each spouse must have their own lawyer. This is a condition of validity.)

Except that in their file, a detail escaped Mrs. Dupont's lawyer: the agreement was not signed within the 7-day period after receiving the information about the right to withdraw. Indeed, the law imposes a 7-day cooling-off period between the delivery of the agreement and its final signature. However, the spouses signed the day after the initial delivery because they were eager to move on. The notary in charge of registration refused to lodge the deed, considering the procedure irregular.

The spouses then applied to the TGI de Nanterre (competent because the husband worked there) to have their agreement validated nonetheless. The court was clear: failure to respect the withdrawal period renders the agreement void. Result: the Duponts had to restart the entire procedure, with additional lawyer and notary fees. A banal story, but one that perfectly illustrates the strict requirements of this procedure without a judge.

The court's reasoning — dissected

The judges of the TGI de Nanterre applied the articles of the Civil Code stemming from the 2017 reform. The legal basis is Article 229-1 of the Civil Code, which provides that divorce by mutual consent may be pronounced by a private deed countersigned by lawyers, filed with a notary's minutes. This article imposes two major conditions: each spouse must be assisted by a lawyer, and the agreement must be signed after a 7-day withdrawal period from its delivery to each party.

Why this period? The legislator wanted to protect spouses from a hasty decision. You are signing a divorce, an irreversible commitment. So you must be able to reflect. The duration of 7 days is a minimum: if you sign before, the deed is void. The Nanterre judges recalled that this period is mandatory, i.e., it cannot be waived in advance.

In this case, Mr. and Mrs. Dupont received the agreement on 5 January and signed on 6 January. The joint lawyer (because they had the bad idea of taking the same one, despite the prohibition? No, each spouse has his own lawyer, but can they have the same firm? Attention: the law requires a separate lawyer for each spouse. In this case, they had two different lawyers, but one of them had neglected to respect the time limit. The court therefore logically annulled the agreement.

This decision confirms the constant case law since 2017: the judge no longer intervenes, but the formalism is strengthened. Lawyers have a role as guardians of compliance with the procedure. Here, Mrs. Dupont's lawyer failed in his duty to advise. The court stressed that nullity is automatic, without possibility of cure. A severe position but consistent with the protective objective.

What this changes for you — concretely

If you are in this situation, you must absolutely respect the 7-day period. Concretely, your lawyer delivers the agreement to you, then you wait a week before signing finally. This is not a trivial formality. In Annemasse, a couple who signed too quickly could find themselves like the Duponts: forced to redo the deed, pay new fees (cost between €1,500 and €3,000 per lawyer, sometimes more if complex assets are involved).

For couples with children, the agreement must also provide for residence arrangements, child maintenance, etc. If you are in a hurry, the temptation is great to skip steps. But it is a mistake: nullity is the penalty, and you will have to start over. Worse, if one of the spouses changes his mind during the period, he can withdraw without cost. This right is valuable: it allows you to back out of an agreement that is too favourable to the other.

Another implication: since 2017, there is no longer a conciliation hearing or a judge to approve. It is faster (3 to 6 months instead of 12 to 18 months for a contested divorce). But the responsibility of lawyers is therefore greater. If you live in Saint-Julien-en-Genevois, we regularly see cases where a less rigorous lawyer forgot to have the annexes signed, or did not specify the fate of the main residence. Result: incomplete agreement, and refusal by the notary.

Four tips to avoid this type of dispute

• Choose two separate lawyers specialised in family law. Each spouse must have his own counsel, and it is better if they know the consensual divorce procedure perfectly. A general practitioner may not know the deadlines.
• Never sign before the 8th day after delivery of the agreement. Note the date on a calendar. Your lawyer delivers the agreement by registered letter or in person with an acknowledgement of receipt. The period runs from this delivery.
• Check that all annex documents are ready before signing. In case of real estate, a land registry search, a loan certificate, etc. are needed. If a document is missing, the notary will block the filing.
• Anticipate tax consequences. The compensatory allowance may be deductible for the payer, but under conditions. A miscalculation can cost thousands of euros. Have an accountant assist if necessary.

Further details: related case law and developments

Other decisions have clarified the contours of the reform. For example, the Court of Cassation (1st Civil Chamber, 12 June 2019, No. 18-15.894) held that the absence of mention of the withdrawal period in the agreement does not render it void if the period was respected. Conversely, a court of appeal annulled an agreement because the lawyer had not delivered the agreement in person but by email, a method deemed insufficient to trigger the period.

The trend is clear: judges require rigorous formalism. Some regret that the reform removed the judge's filter, because unbalanced agreements can pass without control. But the legislator wanted to make lawyers responsible. In the future, we might see liability claims against negligent lawyers. For now, the message is simple: follow the procedure to the letter.

Summary and next steps

Practical FAQ on divorce by mutual consent

• Can I divorce without a lawyer in 2024? No, each spouse must have his own lawyer. This is a legal requirement since 2017.
• How much does a consensual divorce cost? Count between €1,000 and €3,000 per spouse for legal fees, plus notary fees (about €150 for registration).
• What if the other spouse refuses to sign after the withdrawal period? He can withdraw, and in that case the consensual divorce fails. You will then have to start a contested procedure.
• Does the 7-day period run from the first delivery of the agreement? Yes, provided that the delivery is made by a method that allows proof of the date (registered letter, hand delivery with receipt).
• Can I request child maintenance in the agreement? Yes, the agreement settles all the consequences of the divorce, including child maintenance and compensatory allowance between spouses.

In a similar situation? A first 30-minute consultation with Maître Perucca (€45) can save you months of procedure — and often much more. Book an appointment →