Non-contentious matters in civil procedure: when the judge intervenes without litigation

We often think of the judge as the person who settles a dispute, who decides between two adversaries with opposing interests. However, sometimes you need to go to court even when there is no conflict and no declared adversary. This is the special field of "The "matter of graceA lesser-known but essential facet of civil judicial activity.

In these situations, the judge does not act as an arbiter between two camps, but rather as a controller, validator or protector of interests that go beyond those of the simple claimant. The aim of this article is to give you a clearer idea of what is meant by "non-contentious matters": when do they come into play? Why is judicial intervention necessary? And above all, how do the main principles of litigation (the role of the judge, contradiction, publicity) apply in a specific way?

What is a non-contentious matter? Definition and areas

Article 25 of the Code of Civil Procedure defines non-contentious matters: "The court shall rule on a non-contentious matter when, in the absence of a dispute, it is seized of an application which the law requires, by reason of the nature of the case or the status of the claimant, to be submitted to it for review"..

Two criteria emerge from this definition:

1. No dispute : This is its primary characteristic. Unlike contentious matters, where two (or more) parties are in dispute over a right, non-contentious matters concern claims where there is initially no direct adversary contesting the claim. This is also sometimes referred to as the absence of a dispute or adversary.
2. Judicial supervision imposed by law: The judge's intervention is not systematic for all private acts. It is only required in non-contentious matters when the law deems it necessary, either because of the sensitive nature of the case, or because of the particular situation of the applicant (for example, a minor or a protected adult). The judge's role is then to verify the legality of the act or request submitted to him or her, as well as its appropriateness and compliance with the legitimate interests he or she is supposed to protect (those of the claimant, but sometimes also those of third parties or public policy).

A few concrete examples

Here are a few typical areas where the ex gratia procedure applies:

• Family law : Application for a change of matrimonial property regime, simple adoption procedure (when there is no dispute), certain measures concerning protected adults (even if the opening of the measure itself may become contentious if there is opposition).
• Marital status : Request to rectify an error on a civil status record (misspelled name, wrong date, etc.).
• Judicial authorisations : For example, when a guardian must obtain the judge's authorisation to sell a property belonging to the minor or protected adult.
• Approval of agreements : When parties who have reached an amicable solution to a dispute (for example, following mediation or conciliation) ask the court to enforce their agreement (articles 131 and 131-12 of the Code of Civil Procedure).
• Certain company deeds : Appointment of an ad hoc representative, for example.

An evolving subject

The scope of non-contentious matters is not set in stone. In recent years, there has been a trend towards "Diversion from the courts has led to certain procedures being removed from the systematic control of the judge. The most striking example is divorce by mutual consent, which since 2017 has been conducted by means of an agreement countersigned by lawyers and filed with a notary, without going before a judge (unless a child asks to be heard).

Conversely, the emphasis placed on amicable dispute resolution (mediation, conciliation, participatory procedure) could potentially lead to a reduction in the number of disputes that can be resolved amicably. new momentum non-contentious matters, through requests for approval of agreements reached in this context, to give them the same force as a judgment.

Procedural rules adapted to the absence of an adversary

Because there is no direct adversary in a non-contentious matter, the usual rules of procedure are logically adapted. The guiding principles apply, but with significant adjustments concerning the role of the judge, the adversarial process and publicity.

A judge with enhanced investigative powers

In the absence of a counterparty who could provide evidence or raise objections, the judge in non-contentious matters has far more extensive powers of investigation than in contentious matters. His role is more proactiveor even almost inquisitorialto ensure that it has all the necessary information before making its decision.

• Going beyond the alleged facts : Article 26 of the Code of Civil Procedure allows the court to base its decision on all the facts of the case, "including those not alleged". by the applicant. They can search for relevant information themselves.
• Ordering ex officio investigative measures : The judge may, on his or her own initiative, decide to order any measure he or she deems useful: expert appraisal, enquiry, request for documents, etc. (article 27).
• Hear who he wants: It can hear the applicant, of course, but also "any person whom it deems useful to hear".and any third parties that may be affected by its decision (article 27).

These extended powers are the quid pro quo for the absence of adversarial debate: they enable the judge to ensure that he is not making a decision based on an incomplete or biased view of the situation, and thus to protect any interests that may be adversely affected (those of the claimant himself, a child, a protected adult, creditors, etc.).

Contradiction: a principle largely ignored or modified

Since there is no adversary to whom the "contradiction" can be given, this fundamental principle is logically set aside in its usual form. Article 28 of the Code of Civil Procedure even provides that the judge may rule "without debate. This lack of adversarial debate was deemed to comply with the right to a fair trial, precisely because the nature of the procedure explains it.

If a debate does take place, it is often limited to hearing the claimant (or his lawyer) and, in some cases, the public prosecutor if the law requires him to give his opinion. Some authors consider that the contradiction is not totally absent but 'metamorphosed': when the act submitted to the judge is an agreement (such as a change of matrimonial property regime), the contradiction is to some extent integrated upstream, in the discussion that led to the agreement.

Advertising: discretion is the rule

Another consequence of the non-confrontational and often intimate nature of the cases handled in non-contentious matters is that the procedure is not not public.

• Debates, if any, are held in "chamber of councilIn other words, without the public being present (article 434 of the Code of Civil Procedure, which derogates from article 22).
• The decision itself is handed down "out of the public eye (article 451, which derogates from the general rule of publicity of judgments laid down by the law of 5 July 1972).

This confidentiality is designed to protect the privacy of the people concerned and the often personal nature of the information processed.

Specific appeal procedures

Even if the decision is made without an initial adversarial debate, it is not without scrutiny.

• L'call It is generally possible to appeal against a non-contentious decision, unless the law specifically excludes it (article 544). The case is then referred to the Court of Appeal for reconsideration.
• Above all third party whose rights would be affected by the decision handed down on an ex gratia basis (and who therefore did not take part in the initial procedure) have a specific means of appeal: the third party opposition (article 583). It allows them to ask the judge to reconsider his decision, this time taking into account their own interests. This is an important safeguard to compensate for the absence of an initial adversarial process.

Non-contentious claims therefore constitute a procedural universe in their own right, with their own logic, adapted to the absence of an initial conflict but guaranteeing judicial review when the law deems it necessary. Understanding these specific features - the judge's active role, the absence of adversarial debate and publicity, the possibility of appeal - is essential if you are going to seek the judge's intervention in this context. To guide you through these special procedures and ensure that your application is properly presented and investigated, our firm is at your disposal.

Sources

• Code of Civil Procedure: articles 22, 25, 26, 27, 28, 131, 131-12, 434, 451, 544, 583.
• Act no. 72-626 of 5 July 1972 instituting an enforcement judge and relating to the reform of civil procedure: article 11-2.
• Texts specific to the areas concerned (e.g. Civil Code for family law and personal status; Commercial Code for certain procedures relating to companies).