One of the measures of the bill aims to simplify the procedure for divorce by mutual consent.
Today, divorce by mutual consent, which requires only one hearing, assumes that the parties agree on matters concerning children, the liquidation of community property, the payment or non-payment of spousal support, etc. In such a case, only one lawyer is needed, and the couple can thus divorce quickly.
The lawyer must have previously drafted an agreement addressing all the consequences of this divorce. However, if the judge believes that this agreement does not sufficiently safeguard the interests of the children or one of the parties, he or she can demand a new agreement.
With this new reform, in the absence of minor children, spouses will no longer be required to personally appear before the family court judge unless requested by the magistrate or one of the spouses. If they wish, the spouses can simply send the divorce agreement drafted with their lawyer(s) to the judge. After verifying consent and examining the text, the divorce will be communicated by mail.
How can the judge verify from the documents that consent has not been compromised? Can we always dispense with an interview with the spouses? On April 9th, the National Council of Bars (CNB) adopted a motion on this bill, reminding that the non-appearance of parties before the family court judge should remain exceptional and can only proceed at the joint request of the spouses.
According to the governmental bill, lawyers will no longer be able to charge fees exceeding an amount set by decree from the Ministry of Justice. If they do not wish to comply, they will then have to draft a fee agreement determining the method of calculation and the amount of compensation in advance.
However, there is a legitimate question about the usefulness of such a scale when fees are freely determined between the client and the lawyer. Indeed, while a single tariff could perfectly apply to simple divorces, this cannot be the case for more complex mutual consent divorce procedures with children, assets, and spousal support, etc. The CNB has requested to be involved in drafting the government’s implementing decree and demands that the envisaged single fee can only be established after its opinion and be reviewed annually.
