It is impossible to enter into an agreement on the division of assets before the “assignation en divorce”.
In a decision made on September 27, 2017, the Court of Cassation approved a Court of Appeal for having declared null the agreement signed before the introduction of the procedure of divorce by which the spouses had agreed on the liquidation of their matrimonial regime and the payment of a compensatory allowance to the wife.
Indeed, article 265-2 of the Civil Code provides for the possibility for the parties, during the divorce proceedings, to enter into any and all agreement regarding the liquidation and division of their matrimonial property regime.
In the present case, the parties had entered into an agreement settling the patrimonial consequences of their divorce even before the non-conciliation order, i.e. before the first stage of the traditional divorce proceedings.
Under French law, a divorce proceeding is divided into two parts, the first being initiated by a petition for divorce and leading to a non-conciliation order by which the judge orders interim measures to apply during the period of the divorce proceedings, and the second commencing with an “assignation en divorce” or the filing of a joint petition leading to a divorce judgment by which the judge determines in particular the principle and amount of any compensatory allowance and is likely to approve any agreement, partial or global, that the parties could have reached concerning the liquidation of their matrimonial regime. Provide that the agreement was reached during the divorce proceedings, either after the “assignation en divorce” or the filing of the joint petition.
It is the contribution of this judgment which recalls, citing article 265-2 of the Civil Code, that an agreement regulating the liquidation and the division of the matrimonial regime of the spouses concluded before the “assignation en divorce” or the filing of a joint petition is null and cannot therefore be subject to approval by the judge.