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.