FAMILY LAW

Law No. 2016-1547 of November 18, 2016, effective from January 1, 2017, created divorce by  mutual consent without a judge and by lawyer’s deed.

Once the spouses agree on the principle of divorce, the Firm will ask you to prepare your file and  will offer you a first appointment.

Each spouse will be required to have their own lawyer.

This mutual consent divorce agreement must settle all the consequences and effects of the  divorce (the residence of the spouses and children, the use of the marital home, the amount of  alimony, the amount of the compensatory allowance…).

It will be negotiated and drafted by the lawyers, then recorded in the minutes with a notary.

You will be asked to prepare the following documents for the mutual consent divorce:

• Full copies of the birth certificates of each family member, spouses, and child(ren) (less than  three months old)
• Identity card Front/Back of each spouse (or passport)
• Family record book
• Marriage contract if there is one
• Proof of all income for each spouse (latest income tax notice, last 3 pay slips…)
• If loans are ongoing, the contracts and amortization schedules of ongoing loans (mortgage and  consumer loans)
• Property title(s) of real estate
• Bank statements showing the balance, life insurance…

Other documents will be requested based on your personal situation.

During this initial appointment, Nadia HAMMAMI will answer all your questions and listen to your  needs to offer you the most suitable solutions for your situation.

This divorce is the fastest and least expensive in principle, but emergencies or unforeseen  specificities may exist, and Nadia HAMMAMI’s expertise will also support you in these different  situations.

One of these specificities concerns couples where one of the spouses is foreign. If one of the spouses is of foreign nationality, divorce by mutual consent can raise difficulties  when transcribing it abroad.

Internationally, the use of divorce by mutual consent without a judge (extrajudicial) should be  approached with great caution.

Some countries require a divorce judgment to proceed with the transcription of the divorce. To date, French divorce by mutual consent is :

• Certainly recognized in the following states: Belarus, Lebanon, Morocco, Moldova, Russia,  Switzerland, Ukraine.
• In principle recognized (but without conventional guarantee), in the following states: Brazil,  Cuba, the United States (depending on the states), Georgia, Guatemala, Japan, Quebec, San  Marino, Tunisia.
• Not recognized: Indonesia, Canada, Algeria, Kosovo, Macedonia, Mali, Serbia, and Argentina.

Nadia HAMMAMI will answer your questions about its recognition and execution abroad, and advise you on alternative procedures while respecting the spirit of an amicable divorce.

Nadia HAMMAMI represents you at all stages of the divorce by mutual consent, including :

• Negotiations and drafting of the divorce agreement by mutual consent;
• Follow-up of the different stages and appointments for signature;
• Registration of the divorce agreement;

Judicial divorce is a contentious divorce for which it will be necessary to refer to the family court  judge, competent in accordance with Article 1070 of the Code of Civil Procedure.

The territorially competent judge is the judge of the place where the family’s residence is  located.

If the parents live separately, it is the judge of the residence of the parent with whom the minor  children reside or the place of residence of the parent who exercises sole authority.

In other cases, the judge of the place where the person who did not initiate the procedure  resides.

Nadia HAMMAMI has extensive experience in the practice of divorce litigation and separation of  married couples, in free unions or civil partnerships.

She will intervene at all stages of the dispute before the seized courts, including:

• Summons or request;
• Procedure follow-up and pleadings;
• Transactional negotiations;
• Enforcement of judicial decisions;

Divorce for definitive breakdown of the marital bond, this procedure is possible if you have  been separated from your spouse for at least 1 year (Article 237 and 238 of the Civil Code).

Accepted divorce (by acceptance of the principle of marriage breakdown), the spouses  agree to divorce but disagree on the effects and consequences of the divorce (Article 233 and  234 of the Civil Code).

Fault divorce is based on a serious or repeated violation of the rights and obligations of  marriage that makes living together intolerable (Article 242 to 246 of the Civil Code).

Nadia HAMMAMI advises and represents you during the phase of sharing and liquidation of  property during the divorce or separation of couples in free union or civil partnerships.

In the context of a judicial divorce, liquidation and sharing operations can be requested from the  beginning of the procedure, by requesting the appointment of a notary to establish a liquidation  project, in accordance with Article 255, 10° of the Civil Code.

In the context of a divorce by mutual consent, liquidation must be carried out before the  registration of the divorce agreement by mutual consent by the notary. A liquidation statement  will be attached to the divorce agreement by mutual consent.

To share, it is necessary to carry out the liquidation, that is to say, to estimate the assets (real  estate, personal property, money, and debts included) of the spouses to determine the value of  each spouse’s share.

The liquidation allows the evaluation of assets in the community and their distribution between  the spouses.

The liquidation of the matrimonial regime can be done amicably.

The spouses must necessarily agree amicably on the liquidation and sharing of assets. If this is  not the case, divorce by mutual consent is not possible.

Liquidation can be done at different times of the procedure depending on whether an agreement  has been reached between the spouses, during the divorce phase, or after the divorce, by a  summons for liquidation and sharing before the family court judge.

There are different matrimonial regimes that determine the conditions of liquidation and  distribution between the spouses.

• the regime of community of acquisitions;
• the regime of separation of property;
• The regime of universal community;

In case of disagreement and a blocking situation, it is possible to provoke the sharing before the  courts.

The principle is that no one is forced to remain in joint ownership (article 815 of the Civil Code),  consequently, any co-owner can seize the judge in order to proceed with the liquidation and  sharing of movable and immovable property.

The competent judge is the family affairs judge, who is seized by a summons for liquidation and  sharing which must contain, under penalty of inadmissibility, in accordance with article 1360 of  the code of civil procedure:

• a descriptive statement of the assets to be shared (real estate, movable property…and their  valuations);
• a draft distribution of the property;
• a statement of the steps taken to reach an amicable settlement of the sharing, before the  summons (Lawyer’s letter, correspondence exchanged with a notary and the co-owner,  emails…);

Nadia HAMMAMI represents you at all stages of the pre-litigation liquidation and before the  seized courts, notably in:

• Summons for liquidation and sharing;
• Procedure follow-up and pleadings;
• Representation and advice during valuation expert appraisals – and counter appraisals;
• Drafting of comments on the liquidation statement proposed by the designated or chosen  Notary;
• Negotiations;
• Execution of decisions;

During the divorce or after the divorce, the spouse is sometimes forced to sell a common  property, constituting the marital home or the former marital home (urgency and financial  difficulties of one of the spouses or ex-spouses, unpaid mortgage, threat of seizure and judicial

sale…).

In case of disagreement on the sale of the real estate property (between spouses, ex-spouses or  cohabitants or ex-cohabitants), it is possible to request from the family affairs judge the  authorization to sell the property alone.

In application of article 217 of the civil code which states that:

“One spouse may be authorized by justice to perform alone an act for which the concurrence or  consent of the other spouse would be necessary, if the latter is unable to express his will or if his  refusal is not justified by the interest of the family.

The act performed under the conditions set by the judicial authorization is enforceable against  the spouse whose concurrence or consent was lacking, without any personal obligation resulting  therefrom.”

During the divorce, one of the spouses may be justified in requesting from the family affairs  judge the authorization to sell a property alone justified by the interest of the family.

The same applies after the divorce, one of the ex-spouses may be authorized to sell the real  estate property alone, since no one can be forced to remain in joint ownership, in accordance  with article 815 of the civil code, which states that “No one can be forced to remain in joint  ownership and sharing can always be provoked, unless it has been postponed by judgment or  agreement.”

Nadia HAMMAMI represents you at all stages of the procedure to be authorized to sell a real  estate property alone, before the court:

• Summons for forced sale;
• Procedure follow-up and drafting of conclusions;
• Pleadings;
• Execution of the judgment and decisions;