After the pronouncement of the divorce, if the spouses have not succeeded in ensuring an amicable settlement of their patrimonial interests due to a conflictual relationship and persistent disagreements between them, they shall proceed to a partition assignment. The court may order the liquidation of these interests in accordance with articles 1364 and following the Code of Civil Procedure and appoint a notary for this purpose. The role of the notary thus appointed by the court consists of carrying out account operations, liquidation, and division of the property interests of the ex-spouses.
1. Opening the file
Initially, it is up to the notary to contact the lawyers of the ex-spouses, or the parties directly if they are not represented, in order to begin its legal mission.
One of the key conditions to begin the judicial mission is that the parties must carry out, within the time limits, the consignment ordered under the terms of the judicial decision. This consignment is a provision to be credited against the emoluments of the notary. Its amount is set by the judge and payment is directly ordered with the appointed notary.
If this documentation is not carried out, the mission of the notary becomes null and void and cannot begin. In order not to block the legal procedure on the sole will of a former spouse whose aim would be to save time and slow down the operations, it is very common for the judge to provide, in the case of failure of one of the parties, that the other can advance this documentation against accounts in the liquidation of the matrimonial property regime.
Once this condition has been met, the notary generally organizes a first meeting in his office, along with lawyers and the ex-spouses, in order to trigger the operations. This meeting, however useful it may be, is not legally binding. The absence of the parties to this first meeting in no way constitutes as an obstacle to the mission of the notary who will then continue it by correspondence.
2. Constitution of the file
Through a second step, the notary draws up the list of supporting documents necessary for its operations and sets a communication schedule. In the case that the documents useful to its mission are not communicated to him or faced with the inaction of one of the parties, he has an effective solution since he can report to the commissioned judge the impossibility of performing or carrying out his mission in accordance with article 1371 of the Code of Civil Procedure. The commissioned judge can then issue communication injunctions to the parties and possibly issue periodic penalty payments.
Following which, it is up to the appointed notary to draw up a draft quantified liquidation statement detailing the rights of the parties. The latter collects the statements of the ex-spouses and responds to the disputed points by motivating the solution adopted in his draft liquidation statement. The mission ends with filing an act of minutes of statements with the court, which is annexed in the final version of the liquidating statement.
3. Resolution and deadlines
The judicial mission must be carried out within the time limit that is set by the judgment or, failing that, the legal time limit which is of twelve months. It is possible for the appointed notary who notices, as the expiry of this deadline approaches, that it will not be able to file its draft statement of assets, to inform the court of this, specifying the reasons that did not allow him to accomplish his mission in time in order to obtain an extended time period.
The judicial mission also takes place under the respect of the adversarial principle. This means that any document or information communicated by a former spouse must be brought to the attention of the other and the notary cannot receive or communicate alone with one or other of the parties.
In order to favour serenity and impartiality of the debates, it is important that the appointed notary is not the family notary of one of the spouses. If this were the case, one of the parties could consider that the liquidation statement is biased. However, it is essential that the ex-spouses be calm and have no doubts about the impartiality of the professional.
Last but not least, one should keep in mind that it is always possible for the ex-spouses to leave the contentious route to move towards the amicable route. It’s plausible that the judicial operations, having enabled research and investigations likely to shed light on many conflicting points, give the former spouses the opportunity to find a common ground and reach an agreement, the terms of which will be formalized in an act of liquidation and amicable partition.