According to the Associated Press today, France is considering a process of divorce by mutual consent bypassing judicial oversight or intervention. France's Social Affairs Minister Dominique Bertinotti reports that more than half of divorces in France are uncontested. She says that divorces could be handled by court clerks who are "highly trained in the law." Bertinotti reportedly posited that "simplification is a good thing."
"Uncontested"--what does that mean? Does it mean that a couple truly agrees upon the property divistion? Does it mean that each of the parties is truly aware of the nature and extent of marital property? Does it mean that each of the parties has been fully informed of his or her property rights, right to support, rights concerning child custody, parenting time and support? Does it mean that each of the parties is operating without undue coercion or duress and in the absence of domestic abuse? By domestic abuse, I do not mean to limit that term to physical abuse only.
It will be interesting to see how this plays out. However, after some 25+ years of practice in the field, I can surely see how the stronger of the two parties could manipulate many things including, without limitation
- venue and/or jurisdiction
- identification, valuation and distribution of marital property
- identification, valuation and distribution of separate property
- child custody, parenting time and support issues
- spousal support
- enforcement of a prenuptial or postnuptial agreement without considerating of its validity or invalidity
Many times I have represented clients post-judgment when things go wrong because they've done a D.I.Y. divorce. Sometimes the stronger spouse simply manipulated the other spouse into a DIY divorce and neglected to tell the spouse about the existence of assets that were marital and should have been divided. Sometimes it's much worse than that--when a party maniuplates custody and/or parenting time. I'm sure most, if not all, of my colleagues have seen cases where the dust has cleared, it's very obvious that one party has made out like a bandit and the mistake(s) cannot be fixed.
For an example of one of the worst examples of a party "played" by the other party in a DIY divorce, Download OTHER_SHOE_BRIEF
Elodie Mulon, a specialist in family law, reportedly told Le Figaro: "Doing without a judge's authority risks weakening the agreement and reinforces the sentiment — common about those divorcing — that they've been had."
I agree with the above sentiment. If this policy were to become the standard in France (or anywhere), it seems as though there might be increased motivation to seek a rush to judgment / settlement without the weaker spouse having the opportunity to consult with a lawyer in order to become fully informed of his or her rights.