What divorce changed
Banned for seventy years, confined to fault for a century, settled without a judge since 2017: the history of the exit from marriage throws light on what is expected today of the entrance.
A revolutionary creation
The Act of 20 September 1792 created divorce in France, with very broadly open grounds: mutual consent, but also simple incompatibility of temper invoked by one spouse alone. It is the logical consequence of the definition laid down a year earlier, which makes marriage a civil contract.
The effects are immediate and concentrated in the cities. Historians note that a majority of petitions came from women, which they read as the revelation of a demand that had until then no legal outlet.
Seventy years of prohibition
The Restoration abolished divorce by the Act of 8 May 1816, sponsored by Louis de Bonald. Marriage became indissoluble again, and would remain so until 1884. Only judicial separation survived, allowing spouses to live apart without permitting remarriage.
This period produced a numerous category of de facto unions without status, a question that would resurface throughout the century. It is one of the rare cases in which one can observe directly what the absence of an exit door produces.
The century of fault
The Naquet Act of 27 July 1884 reinstated divorce, but for fault exclusively: adultery, a criminal conviction or ill-treatment had to be proved. Mutual consent, known in 1792, was not reinstated and would not be until 1975.
A century of divorces requiring the demonstration of a wrong has a direct consequence: the procedure organises the conflict. A case must be built against the other, which turns a separation into a prosecution, including when both wished to leave.
Leaving the courtroom
The Act of 11 July 1975 reinstated mutual consent and decriminalised adultery. The reform of 26 May 2004 simplified the procedures. Since 1 January 2017, divorce by mutual consent is settled without a judge, by an agreement signed by the spouses each assisted by their own lawyer, then lodged with a notary.
Two safeguards frame this move out of the courts: each spouse must have their own lawyer, which rules out a single adviser, and a fifteen-day cooling-off period runs before signature. If a minor child asks to be heard, the procedure returns to the courts.
The debate this reopens
Supporters of this evolution invoke speed, cost, and the fact that a judge added nothing when everything was already settled. Opponents argue that the judge's scrutiny protected the weaker party, and that apparent agreement sometimes covers a surrender.
The debate is not settled, and it is found in several European countries that have proceeded likewise, Spain before a notary since 2015, Portugal at the civil registry offices. What is at stake is the place one wants to give a third party in a private decision.
Key points
Created in 1792, abolished in 1816, reinstated in 1884 for fault only: the right to exit marriage took nearly a century to return.
A century of divorce for fault made separation a prosecution, including when both wanted to leave.
Since 2017, mutual consent is settled without a judge; the debate bears on the protection of the weaker party, and it is not settled.
This article describes documented mechanisms and disagreements. It recommends no position, no party and no vote, and commits to no reading other than that of the work it cites.
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