Irretrievable impairment of the marriage tie – separation

Why choose this ?

Divorce proceedings for Irretrievable impairment of the marriage tie can be implemented for spouses who are de facto separated. The required duration of their separation varies depending on whether the procedure has been initiated before or after the 1st of January 2021.

What are the steps ?

If proceedings start after the 1st of January 2021 :

Irretrievable impairment of the marriage tie (divorce pour altération définitive du lien conjugal) applies to spouses that have been separated for at least a year, with or without one of the spouse’s consent. This delay of one year can be acquired during proceedings if at the time of serving the writ of summons the one-year period has not elapsed yet. However, it must not have been interrupted, any resumption of cohabitation would void the delay.

The date and time of the first hearing called ‘Orientation and Interim Measures Hearing‘ appear on the writ of summons (assignation en divorce). The defendant spouse who received the writ must appoint a lawyer to represent him/her at this hearing and throughout proceedings.

If the spouses or one of them make requests for interim measures to be applicable during divorce proceedings, their presence is required at this hearing. However, if not such requests have been made, parties do not have to attend and must be represented by their respective lawyers. At the hearing the family-law judge (juge aux affaires familiales) takes note of the parties’ claims or any agreements regarding interim measures. Some measures deal with the situation of the spouses (interim maintenance, rent…), some those of the children (residence, contact, child support…). The judge issues an Interim Measures Order which can be appealed, for example on the amount of child support or regarding parental authority.

The procedure continues by way of pleadings and documents exchanged between lawyers according to a procedural timetable determined by the judge in charge of your case. Even if at the start of proceedings, only one of the spouses wished to divorce, it is always possible to find an agreement during the procedure, and to express it in pleadings drafted by the lawyers via concordant’ pleadings (conclusions concordantes). In this case, each party includes within its pleadings a declaration of acceptance of principle of marital breakdown, or a deed of lawyers confirming the agreement of the spouses on principle of marital breakdown. The family-law judge can approve partial or complete agreements between spouses. Its decision (jugement) is communicated to you through your lawyer and you may consider the opportunity of an appeal.

If proceedings have started before the 1st of January 2021 :

To start these proceedings, a petition for divorce, (une requête en divorce), has been filed by the lawyer of the spouse who is requesting the divorce. 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. However, the reasons for separating must never be disclosed.

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), to a conciliation hearing, (une audience de conciliation). During this hearing, the judge first sees each spouse separately, and then both together along with their lawyers. The judge makes sure that the petitioner (the spouse petitioning for divorce) genuinely wants a divorce.
If this is the case, the judge considers the claims of each spouse regarding interim measures for the duration of the proceedings. At the end of this hearing, the judge sets a date on which they will rule on these measures.

This decision, called the Non-Conciliation Order (une Ordonnance de Non Conciliation – ONC), records the petitioner’s wish to divorce and the separated residence of the spouses. The order will also rule on :

• Who stays in the marital home
• Parental authority
• Residence of any children
• Right of the non-custodial parent to regular visits and overnight stays (right of contact)
• Maintenance (periodical payments) for the children and spouse if applicable
• Division of household expenses.

Both spouses have the right to appeal against this Order. The ONC gives the right to the petitioner to summon the other spouse to a divorce hearing.

Following the writ of summons (une assignation en divorce), the divorce case is allocated to a family-law judge. This can be the same judge that ruled on interim measures, or it can be a different judge. This judge makes sure that, on the date the writ of summons was issued, the two-year period of separation has indeed elapsed. They also consider the claims of both spouses and will rule on any disputed matters (e. g. children, financial aspects of the separation, etc). It is perfectly possible that the respondent (the spouse being sued for divorce) files a cross-petition, (une demande reconventionnelle), on the ground of fault, (un divorce pour faute). If this is the case, it is likely that the petitioner will then state all the grievances that they have against their spouse. Should this happen, the divorce can become very antagonistic.

Once the exchange of pleadings (des conclusions) between the lawyers has been completed, the judge sets a hearing date for the lawyers’ closing speeches, (les plaidoiries). As with all other divorce hearings, this hearing will take place behind closed doors. Attendance at this hearing is not compulsory for the spouses. At the end of the hearing, the judge sets a date on which a final decision will be made (usually one or two months later).

The judge’s decision (le jugement) will be communicated to you through your lawyer, and you may then want to appeal against this decision. The appeal can be related to the principle of the divorce itself or to its consequences. For example, the amount of compensatory allowance (la prestation compensatoire) awarded.

Want to ask a question ?

For a confidential discussion about your situation or requirements, you can contact Peggy Lethier by telephone or email : Contact