INTRODUCTION

Who could have predicted that in 2016 France would open a new path for consensual divorce in which the family judge would no longer have a role to play? Nobody expected such a radical change so soon.

In 1998, sociologist Irène Thé ry suggested introducing non-judicial divorce. But it was too early for such a radical change.

In 2007, it was suggested that the notary public should record the consensual divorce of spouses. But in 2008 the Guinchard Commission on desirable justice reforms did not support this proposal, as they considered that it would hinder the important task of the family judge to protect the weaker spouse and the minor children.

A new suggestion was made in 2013 by the D elmas-Goyon report ‘L e juge du 21 e me si e cle’. The report suggested that consensual divorce should be granted by a new greffier juridictionnel (a new position that did not yet exist); this would be a high-ranking court clerk to whom some judicial functions should be transferred in order to relieve the judges of part of their workload. They could grant consensual divorce (divorce par consentement mutuel) notwithstanding the existence of minor children of the spouses and without regard to the composition of the spouses’ assets (immovable property, etc.). According to proposal n o. 47, this new greffier juridictionnel would also have to scrutinise the spousal agreement, at the time of divorce, with regard to the fairness of the divorce consequences and the child's best interest. Scholars criticised this proposal.

Because of this history, nobody expected new discussions so soon about a possible out-of-court divorce. When the Draft Bill on Justice in the Twenty-First Century was presented by the former minister of justice, Christiane Taubira, not a single provision mentioned non-judicial divorce, since divorce did not initially fall within the scope of the Draft Bill. However, after the Bill was brought before Parliament (on 31 July 2015), the Ministry of Justice presented numerous subsequent amendments. One of them suggested the introduction of a non-judicial consensual divorce. On 12 July 2016, the Parliamentary Assembly (Assemblée Nationale) passed the law on the modernisation of justice of the twenty-first century. In October 2016, the Second Chamber (Sénat) withheld consent regarding non-judicial consensual divorce in cases where the spouses have minor children.