For 50% of couples, marriage is not a “happily ever after” scenario. With the divorce rate climbing world-wide, many countries are testing out different approaches to the divorcesystem in hopes of finding the right balance between fairness and judicial efficiency. Divorce laws in the U.S. vary widely from state to state, but the common thread that binds all U.S. divorce law together is the need for a judge to enter a final decree in divorce. While many couples will negotiate a settlement to their divorce outside of the court system, in the end a judge is needed to sign off on the final settlement and issue a Divorce Decree. While judges have almost universally been part of divorce proceedings in Europe as well as the U.S., France is proposing a drastic change to the divorce system that would eliminate the need for judges entirely.
Earlier this month the French Social Affairs Minister announced the country’s desire to “simplify” the divorce process by allowing for court clerks, rather than judges, to approve divorces where both spouses agree. Like special masters appointed by many U.S. state courts to handle aspects of divorce and custody cases, court clerks in France are highly trained in the law and capable of handling divorce cases. However, opponents to the new change argue that allowing court clerks to make decisions in divorce cases will weaken agreements between the parties and make them harder to enforce. Such weak agreements would ultimately result in the need for judge intervention down the road when something goes wrong. Still other opponents feel that the proposed change will weaken the institution of marriage in France, sending a signal that marriage is a fleeting event that can be created and destroyed without the need for judicial intervention.
While it may sound like the proposed change in France will result in a more “laissez-faire” approach than divorce in the U.S., the existing structure of divorce in France proves the opposite. For example, while parties may choose to represent themselves in a divorce proceeding in the U.S., there is no such thing as “Do-It-Yourself Divorce” in France. An application for Divorce must be presented by an “avocat” (essentially a French lawyer) or else the court can refuse to process the request. This means that regardless of how amicable the couple may be they must incur the expense of hiring a lawyer to finalize their divorce.
The proposed change to French divorce law is aimed at increasing judicial efficiency by doing away with the need for amicable divorces to be heard by the judges. While France’s goal is admirable, it’s important that the court system be involved in divorce matters in order to ensure each party has carefully considered his or her rights before entering into a settlement agreement. But, regardless of whether a judge’s signature is needed to finalize a divorce, the most important decision one can make in approaching a divorce is to retain an experienced divorce attorney.