When spouses are going through divorce proceedings and there are heritage issues, the family court judge appoints an expert notary on the basis of article 255 9° and 10° of the Civil Code. Pursuant to Article 255 10° of the Civil Code, the expert notary has the task of drawing up a draft liquidation statement of the matrimonial property regime of the spouses and quantifying their respective assets within this liquidation. The project is established in compliance with the adversarial principle and analyzes the claims of each party. The latter is addressed to the magistrate, it describes the possible disparity between the spouses in terms of assets so that the judge determines whether it is necessary to order a compensatory allowance for the benefit of the less fortunate party.
The role of the expert notary is to give its opinion on each point which is disputed. Although an amicable agreement remains possible, it is not the expert notary’s mission to reconcile the parties.
2. Processing of the file
The judicial mission only begins once the consignment has been paid by the spouses to the court management or to the notary’s accounts. Following which, each party, assisted by its counsel, is called to an initial meeting. This aims to establish the list of documents necessary for the drafting of the expert report. Each spouse must send their documents to the expert notary through their lawyer.
In the event of default or inaction on the part of one of the parties, the notary may apply to the judge for an injunction order to communicate the documents.
Once the documents have been received and analyzed; the expert notary shall send a preliminary report to the counsel of the parties. A period of several weeks is then granted to the parties to formulate their observations and to send any additional documents. After this is done, a second draft expert report is drawn up, which takes into account the observations of the parties. Discussions continue until the parties have no further comments. After which, the expert notary drafts the final liquidation statement which he sends to the judge within the time limit set by the latter.
It often happens that this period is not enough, the notary then requests for an extension.
The notary can also appoint a technical expert of his choice, in particular for the valuation of shares or real estate. The appointment of a technical expert suspends the period granted by the magistrate for the completion of the expert mission and gives the notary the right to request an additional provision from the judge for the remuneration of the latter. He can also motion the national file of bank and similar accounts (FICOBA) and the national file of life insurance and capitalization contracts.
The expert notary appointed on the basis of article 255 9° of the Civil Code must analyze the separate assets as well as the income and expenses of each spouse and then make proposals to settle the pecuniary interests of the spouses. To put it otherwise, the expert notary is responsible for analyzing the situation of the spouses in regard to the criteria of article 271 of the Civil Code and suggesting a figure for the compensatory allowance so that the judge can set the amount for the following items:
- The duration of the marriage,
- The age and state of health of the spouses,
- Their professional qualification and situation,
- The consequences of the professional choices made by one of the spouses during the common life for the education of the children for example or to favor the career of his spouse to the detriment of his own,
- The estimated or foreseeable assets of the spouses, both in capital and in income, after the liquidation of the matrimonial regime,
- Their existing and foreseeable rights,
- Their respective situations in terms of retirement pensions.
The expert notary is remunerated in two ways:
- Under article 255 10° of the Civil Code, it receives tariffed emoluments, the amount of which is proportional to the gross community or undivided assets,
- Under article 255 9° of the Civil Code, it receives fees fixed according to the time which has been spent on the file.
A period of fifteen days from the sending of the expert report is given to the parties to submit their observations on the request for remuneration of the notary. At the end of this period, a tax order is issued by the magistrate. Upon receipt, this order is served on the parties in order to make it final. The deposit paid to the administration of the court by the spouses is then transferred to the accounts of the expert notary.