Contemplating the breakdown of a marriage is never easy. Often, the decision is made only after a long period of heartbreak, soul-searching and agonizing uncertainty, especially where children are involved. More and more couples wish to minimize the conflict, and choose to amicably dissolve the union in a climate that is conducive to agreement. If you are among them, your notary can give you information and advice on the legal consequences of separation, divorce or dissolution of a civil union. Trusted family advisors over the years, notaries are experts in civil law, and this includes matrimonial law. Their university training and experience in drawing up contracts make them outstanding legal advisors. Your notary can inform you and guide you through the legal process leading to separation, divorce or the dissolution of a civil union.
To obtain an amicable separation of a marriage or civil union, the married spouses or civil union couples who go before the court to dissolve their union may opt for an amicable separation or divorce.
Statistics have proven the benefits of an amicable agreement as opposed to a judgment obtained through a climate of confrontation and quarrelling: it can shorten the process and reduce the costs and legal fees. Moreover, it appears that the children involved are much less traumatized by the experience when their parents can communicate and agree.
There are no winners or losers under the judgment which follows the draft agreement since it ratifies the result of negotiations and agreements freely entered into by responsible individuals wishing to decide their future for themselves.
To obtain an amicable judgment of separation from bed and board, divorce or the dissolution of a civil union, the spouses must have agreed to all the consequences of their separation beforehand. Your notary can draw up such an agreement for you: this is referred to as the draft agreement. It is the fundamental document that is submitted to court with your application for separation from bed and board, divorce or the dissolution of a civil union. In the judgment of separation from bed and board, divorce or dissolution of a civil union following the joint application accompanied by the draft agreement, the court confirms the draft agreement.
Spouses who agree on the consequences of the dissolution of their civil union and who do not have children are allowed to dissolve their union before a notary, without having to go before a court of law. This is a true amicable split since no intervention is required by the court. However, even if the spouses agree on all the consequences of their breakdown, they must go before the court as soon as the interests of the spouses’ children are at stake. However, you can opt for an amicable split, even if the rules oblige you to obtain a court judgment.
If questions are raised on a particular subject or relations between the spouses deteriorate to the point that it becomes difficult to finalize an agreement on the effects of the marriage breakdown, the couple may resort to family mediation. Family mediation may even be used at the outset of the separation if difficulties are foreseeable. Family mediation is also possible in the case of the dissolution of a civil union.
Many notaries have developed an expertise as a result of special training and have been certified by their professional order to act as family mediators. This enables them, as impartial third parties, to help spouses resolve their differences themselves and draw up a workable, mutually satisfactory agreement that determines the effects of family reorganization.
Family mediation is an alternative to the traditional judicial process. Unlike the judicial process, mediation allows room for emotions and direct exchanges.
The Role of the Mediator Notary
Family mediation is not therapy for the reconciliation of parties. Before beginning mediation, the mediator notary must be sure that the couple’s decision to separate is final. The aim of the mediator notary is to ensure that the solutions found are just and fair for everyone and that they respect the laws in force. He or she does not give an opinion but provides all the information necessary for the parties to make enlightened decisions.
The Steps in Mediation
Mediation is characterized mainly by its flexibility and, depending on the degree of difficulty or the points to be covered, consists of two to eight sessions lasting one or two hours each. The steps followed by the mediator notary are basically the same in any mediation.
- The first introductory meeting is where the mediator notary explains to the parties the process of mediation and the basic rules that apply. If, at the end of the first meeting, the parties decide to continue mediation, the mediator notary has them sign a consent to mediation as evidence of their good faith; it also ensures full cooperation and establishes costs.
- The mediator notary, together with the spouses, analyses the problems and determines their needs and interests and those of their children.
- The spouses and the mediator notary then explore different options and verify whether they meet the needs that have been identified.
- After the parties have reached an agreement and made the necessary decisions, the mediator notary prepares a draft agreement that fully reflects their wishes. He or she verifies that the solutions contained in the draft agreement (if it concerns separation from bed and board, divorce or the dissolution of a civil union before the court), or in a notarized transaction contract (if it concerns separation from bed and board, divorce or the dissolution of a civil union before a notary), comply with the law. In addition, the mediator notary ensures that the agreement respects the interests and meets the needs of all parties involved.
- Once the draft agreement is signed, a joint application for separation from bed and board, divorce or dissolution of a civil union before the court must then be prepared on the basis of the agreement. Because of the precautions taken, the draft agreement is very likely to be approved by the court and confirmed by judgment.
For all these delicate matters,
you can rely on Eric Dugas.