Why choose this?
Acceptance of the principle of marital breakdown (divorce par acceptation du principe de la rupture du mariage) applies in three situations:
- Both spouses agree on the principle of the divorce, but disagree on other matters. For instance, they may disagree on the amount of compensatory allowance, or the schedule of visits. In this case, they leave it to the judge to settle their differences.
- One of the spouses wants a divorce. However, while not being opposed to the principle of the divorce, the other spouse does not wish to initiate divorce proceedings. This is why this procedure is often called ‘accepted divorce’.
- Both spouses agree on the principle of the divorce and its consequences, but are unable or do not wish to go through a divorce by mutual consent. One reason for choosing this route is because the spouses want to finalise their divorce before their shared assets are sold, particularly where property prices are falling at the time.
As with divorce by mutual consent, the causes of marital breakdown are never revealed in legal documents or at the court hearing.
What are the steps?
To start these proceedings, a petition for divorce, (une requête en divorce), can be filed either by the lawyer of one of the spouses, or simultaneously by the lawyers of both spouses. Among other information, this petition will outline ‘interim measures’ that will occur during the divorce proceedings, such as where the spouses and any children will be living.
A few weeks or months later (depending on how busy the courts are), the spouses are summoned by the family-law judge, (un Juge aux affaires familiales), for a conciliation hearing, (une audience de conciliation).
During this hearing, the judge first sees both spouses separately, and then together with their lawyers. The judge makes sure that the spouses’ consent to the divorce is made voluntarily and is ‘fully informed’, meaning that both spouses are aware of all factors involved. If this is indeed the case, the judge will draw up an official statement, (un procès-verbal), recording that both spouses agree on the principle of the divorce. Once this is done, the principle of the divorce is final.
The judge will then examine the claims made by the spouses regarding interim measures, which only apply for the duration of the proceedings. At the end of the hearing, the judge sets a date on which they will give their decision regarding these measures.
This judge’s ruling is called the non-conciliation order, (Une Ordonnance de Non Conciliation – ONC) and it will rule on:
- Who stays in the marital home
- The separate home of each spouse
- Parental authority
- Residence of the child
- Right of the non-custodial parent to regular visits and overnight stays (right of contact)
- Maintenance (periodical payments) to be paid for the children and spouse if applicable
- Division of household expenses
A spouse has the right to appeal against the order. For example, questioning the amount of maintenance to be paid or parental authority.
It is important to bear in mind that the appeal can only be made when it relates to the interim measures and not to the principle of the divorce itself, which is now final.
- If the marriage breakdown was formally accepted during the conciliation hearing or soon afterwards and the spouses are in agreement regarding the consequences of their separation, the spouses file a joint application to initiate proceedings, (une requête conjointe introductive d’instance). This must be accompanied by the official statement of acceptance, (un procès-verbal d’acceptation) and may be filed at any time after the non-conciliation order. A family-law judge will ensure that each part of the agreement protects everyone’s interests, particularly those of any children. If it is the case, he will issue a final jugment endorsing the agreement (le jugement).
- If the marriage breakdown was formally accepted during the conciliation hearing or soon afterwards and the spouses are not in agreement regarding the consequences of their separation, the spouse that initially petitioned for divorce (the petitioner) has the right to summon the other spouse to a divorce hearing. This writ of summons (assignation) is notified to the other spouse by way of a bailiff (huissier de justice). Following the writ of summons, the divorce case is allocated to a judge. This can be the same judge that ruled on the interim measures or a different judge. The parties must then exchange their pleadings, (des conclusions), through their lawyers, with the evidence to support their claims. The judge allows each lawyer a certain amount of time to conclude and respond to the opposing arguments, and to communicate all of the supporting evidence. Once the judge considers that the case is ready to be heard, he will set a court date for the lawyers’ closing speeches, (des plaidoiries). As with all other divorce hearings, this takes place behind closed doors. The spouses’ attendance at this hearing is not compulsory. The judge then sets a date on which they will make their final decision (usually one or two months later). The judge’s decision, (le jugement), is communicated to you through your lawyer, and you may consider the opportunity of an appeal.
It is important to bear in mind that the appeal cannot apply to the principle of the divorce itself, which was decided in the non-conciliation order and is now final. However, it could relate to aspects of the judge’s decision, such as the amount of compensatory allowance awarded by the judge to one of the spouses.
Want to ask a question?
For a confidential discussion about your situation or requirements, you can contact Peggy Lethier by telephone or email: Contact