Divorce by mutual consent

Divorce by mutual consent is the first type of divorce mentioned in article 31 of the Personal Status Code.

In this type of divorce, both spouses agree to put an end to marital life. In opposition to divorce for harm and divorce without ground, this type implies that divorce is pronounced on the ground of the wish of both spouses. the consensual feature is the specificity of this type of divorce.

Nevertheless, the recourse to the Court is required even in this type where both parties agree to contract divorce. Thus, one of the spouses has to file for divorce by Mutual consent and summon the other to attend the reconciliation session.

Divorce by mutual consent is granted only when two spouses accept to contract this type of divorce. In this respect, an unbroken line of precedents requires that both parties in a divorce for mutual consent case, must attend at least one session before the family judge in which they have to express undoubtedly their wish to contract this type of divorce.  A separate notarial act or any other act is not accepted to prove the wish for contracting divorce by mutual consent.

The first particularity of this type of divorce lies on the proceeding involved. in fact, when divorce is requested on the ground of mutual consent, the procedure takes much less time.

This is due to the fact that in a mutual divorce case , the parties have not to wait for several sessions to achieve evidence exigencies. Besides, this type does not imply any procedure to request moral and material damages and thus it can easily be conducted without the recourse to lawyers representing each of the parties. Furthermore, being the wish of both spouses, divorce pronounced by the court on the ground of mutual consent may not be subject to appeal by any of the parties.

However, when minor children exist, three reconciliation session are to be held by the family judge with an interval of 30 days. This rule is applied whenever children are involved without regard to the type of divorce requested.

The second particularity is that divorce by mutual consent does not imply any financial consequences.  The wife has no right to moral and material damages and the husband can’t claim for moral damages in response. These financial consequences are specific to divorce on the ground of harm and divorce without ground.

The judicial practice demonstrates that many cases where one of the spouses files for divorce by mutual consent turn into divorce without ground.

In fact, when the plaintiff fails to have the defendant’s approval to this particular type of divorce because of a refusal or because of an absence in the trial, he had to choose between withdrawing his petition and changing it into divorce without ground or for harm. Otherwise the court may reject his demand.

Divorce in Tunisia

Divorce in Tunisia is governed by the Personal Status Code ( P. S. C) promulgated in 1956. It is defined by article 29 of the Code as the dissolution of the contract of marriage.

Major new rules were established by the Code in opposition with former legal system based on religion.

Article 30 of the Code rules that divorce must be pronounced by court. This means that it can only take place through court. thus, the Code abolished former “repudiation” based on Islamic law. Repudiation was the ability for a man to decide unilaterally the end of marriage without recourse to court and without reparation to the woman.

The competent court to deal with divorce cases is the “court of first  instance” in whose jurisdiction the defendant party is resident. In every tribunal, a family judge is designated to hear divorce disputes.

The judicial intervention in divorce is a must even when divorce is the result of a mutual consent. Both spouses have to go before the judge to fulfill their agreement and put an end to marriage. A notarial act or any other document is not sufficient to divorce.

Besides, the Code established equality between spouses as to the cases of divorce. It is ruled in Article 31 of the code that divorce can occur in three cases:

First, by mutual consent of the spouses.

Second, when requested by one of the spouses because of the harm it has suffered from the other.

Third, when requested by one of the spouses.

Whereas the first type of divorce does not have any financial consequences in the sens that neither the plaintiff nor the defendant has a right to receive damages, the second and the third type of divorce may engender reparation to one of the spouses for material or moral prejudice when requested.

The party who requests divorce for harm had to prove the existence of a harmful act.  Adultery and domestic violence are two reasons accepted by courts to pronounce divorce and reparation.

These major rules established by the Code since 1956 make that divorce in Tunisia is a very different legal matter when compared to the old system based on religion.

The Personal Status Code in Tunisia was presented politically as a new interpretation of the Islamic Charia. However, it is undeniable that  the Code established many rules with no basis in Islamic family law. It outlawed Polygamy which was a fundamental rule in all Islamic family regulations.

All the subsequent amendments of the Code ( on June 19, 1959 by law 59-77; April 21, 1964 by law 64-1; February 18, 1981 by law 81-7; and July 12, 1993 by law 93-74.) subscribed to the will of modernization established since 1956.