A new contract between spouses : divorce by mutual consent

France

Since 1 January 2017, if spouses want to reach an amicable settlement of their divorce (disposal of their assets, custody of children, alimony for under-age children or students, compensatory allowance for one of the spouses, retention of the other spouse's last name), the Court can no longer intervene unless an under-age child wishes to be heard by a court.

The spouses must hire have separate lawyers, who will have exclusive control over this highly regulated procedure.

The involvement of a notary (“notaire”) will nevertheless be required if real estate is involved. After a compulsory 15-day waiting period, the instrument that sets out all of the terms of the agreement is signed by the spouses and their lawyers, then recorded at the notary's office for archiving purposes. Once recorded by the notary, the divorce is official.

The texts on taxation have included this new type of divorce, without changing their substance. The result is as follows:

  • tax at the rate of 2.5% if the assets of the marriage or jointly owned assets are shared;
  • integration into income tax of income from the compensatory allowance if payments are made over a period of more than 12 months;
  • transfer duties and capital gains tax if the compensatory allowance is paid in kind, in particular by way of personal real property.

N.B.
The simplified procedure for this new type of divorce does not simplify divorces by mutual consent as much as it seems, as these types of divorce often require an in-depth analysis of the estate and tax situation.