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You are married to a person of a nationality which is different from yours or you reside in a country in which you do not have the nationality, and you wish to get a divorce: between national laws, European Community law, bilateral or international conventions, it is not easy to find one's way.
It is wrong to think that being French, the French judge hearing the divorce will necessarily have jurisdiction and necessarily apply the French law. Conversely, the French court may completely decline its jurisdiction or pronounce a divorce in application of Moroccan, Chinese or Australian law.
An international context leads to two questions: the one of the competent courts and the one of the law applicable to the divorce. It is the rules of private international law that make it possible to answer them.
Which court can you go to for divorce in an international context?
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Jurisdiction of the court in the European Union
What are the texts that determine the competent court?
Within the European Union, the jurisdiction of the courts is determined by the European regulation Brussels II bis applicable until 31 July 2022 and the regulation Brussels II ter from August 1, 2022.
These regulations bind all member states of the European Union with the exception of Denmark.
What is the scope of the regulations?
These texts regulate jurisdictional disputes in matrimonial matters, and more specifically determine the rules of jurisdiction in matters concerning divorce, legal separation, and marriage annulment.
On the other hand, disputes relating to maintenance obligations (for example the duty of assistance), to the compensatory allowance and to the patrimonial effects of the marriage, in particular the liquidation of the matrimonial regime, are excluded.
Similarly, divorce without a judge is excluded from the scope of the Regulations, which only concern divorces pronounced by a state court. Notaries are intended to receive any document from French or foreign parties, whether they are domiciled in France or abroad, as soon as the French law is applicable to their divorce (Circ. Justice, JUSC1638274C of January 26, 2017, record 6). This leads to certain difficulties, particularly in the case of a dispute, since the courts seized will not necessarily have jurisdiction, pursuant to the regulations.
What are the rules of jurisdiction provided for in these regulations?
With regard to habitual residence, the courts of the Member State in the territory where it is located, according to article 3-1-a, have jurisdiction.:
- “the habitual residence of the spouses,
- or the last habitual residence of the spouses as long as one of them still resides there,
- or the habitual residence of the defendant,
- or, in the event of a joint application, the habitual residence of one or the other spouse,
- or the habitual residence of the applicant, if he has resided there for at least one year immediately before the submission of the application,
- or the habitual residence of the applicant if he has resided there for at least six months immediately before the lodging of the application and if he is a citizen of the Member State in question”.
Good to know: European case law considers that a spouse, even if he divides his life between two States, can only have one habitual residence. The latter is characterized by two elements: the desire of the person concerned to fix the usual center of his interests in a specific place and a sufficiently stable presence on the territory of the Member State concerned (CJEU, 25 Nov. 2021, case C289 /20, BI).
- With regard to nationality, article 3-1-b specifies that it is possible to submit the matrimonial dispute to the courts of the State of the common nationality of the two spouses or, in the case of the United Kingdom or of Ireland of common domicile.
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Outside the European Union
When no court of a Member State has jurisdiction, pursuant to Articles 3, 4 and 5 of the Regulation, jurisdiction is determined by the common law of each State (art. 7 of the regulations), therefore for France, by the jurisdiction rules of the Code of Civil Procedure (CPC, art. 1070 et seq.). Otherwise, jurisdiction will be based on Articles 14 and 15 of the Civil Code, when one of the spouses is French. Articles 14 and 15 may be invoked by a national of a Member State who has his residence in France (art. 7-2 of the regulation)
In France, article 1070 of the Code of Civil Procedure is applied to determine internal territorial jurisdiction in matters of divorce. This provision provides for three hierarchical categories of competence:
- The residence of the family,
- Failing this, the residence of the spouse who is responsible for the minor children,
- Failing this, the residence of the spouse who did not initiate the divorce.
Furthermore, pursuant to the jurisdictional privilege provided for in Article 14 of the Civil Code, it is also in principle possible for any French person (or any national of a member country residing in France, Cass. 1ère civ., 25 Sept. 2013, n°12-16900) to translate for their spouse (even foreign, even residing in France) before the French courts,
What is the law applicable to divorce within an international context?
Once the jurisdiction of the court has been determined, the judge will have to determine the law applicable to the divorce, which will not necessarily be the one of his State.
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Which text determines the law applicable to international divorce?
The European Council Regulation No. 1259/2010 of December 20, 2010 (known as Rome III) entered into force on June 21, 2012 and therefore applies to divorce or legal separation proceedings presenting a conflict of law and initiated since that date.
From a geographical point of view, the regulation is only applicable in the Member States participating in the enhanced cooperation, i.e., seventeen States (Belgium, Bulgaria, Germany, Spain, Estonia, France, Greece, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, and Slovenia).
The regulation concerns all international couples, regardless of their residence, nationals of participating Member States, of other EU States or of a third-party Member State.
The Rome III regulation replaced article 309 of the Civil Code. It allows, if the spouses agree, to choose the law applicable to their divorce or legal separation. In the absence of a choice by the parties, the rules determine the applicable law.
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Scope of the Rome III Regulation
The regulation applies to the principle of divorce or legal separation, its causes, and the date of the marriage’s dissolution.
On the other hand, conflicts of law concerning the annulment of the marriage, the validity of the marriage, the name of the spouses, the divorce procedure, the maintenance obligations, the property consequences of the divorce are excluded from the scope of the regulation and the conflicts of laws relating to these questions will have to be regulated by national laws or by conventions.
Moreover, the Rome III Regulation only applies to judicial divorce. Divorce without a judge will be subject to the French conflict of law rules (309 .C civ.)
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Possibility of a choice of law by the spouses
Which law can the spouses choose?
According to article 5, the laws likely to be chosen by the spouses are as follows:
- the law of the State of habitual residence of the spouses at the time of concluding the agreement.
- or the law of the last habitual residence of the spouses insofar as one of them still resides there at the time of the conclusion of the agreement.
- or the law of the State of nationality of one of the spouses at the time of the conclusion of the agreement.
- or the law of the forum (of the State where the court seized).
These criteria are assessed on the day of the conclusion of the choice of law agreement.
This law may be the law of a participating Member State, the law of a non-participating Member State or the law of a State which is not a member of the European Union due to the universal character of the Regulation.
Irrespective of the court seized in one of the participating Member States, the law designated by common agreement will be applied (unless the designated law is manifestly incompatible with the public order of this State).
Limitations
The validity of this agreement will only be ensured if one of the participating Member States is competent pursuant to Regulation Brussels II bis or ter unless this State opposes its public order (for example prohibition of homosexual marriage).
If the court seized is not the one of a participating Member State at the time of the proceedings for divorce or legal separation, this agreement is unlikely to be recognized.
It will be necessary to verify whether the rules of private international law in force in this State as well as its public order are consistent with the designated law.
The formal requirements of the choice of law agreement
The agreement must be in writing, dated and signed by both spouses. Any transmission by electronic means which makes it possible to record the agreement durably is considered to be in written form.
Additional formal rules for this type of agreement may be provided for by the law of a participating Member State and this leads to the following distinctions (art. 7):
- If the law of the participating Member State in which both spouses have their habitual residence at the time of the conclusion of the agreement provides for additional formal rules for this type of agreement, these rules apply.
- If, at the time of the conclusion of the agreement, the spouses have their habitual residence in different participating Member States and if the laws of these States provide for different formal rules, the agreement is valid, if it satisfies the conditions fixed by the law of one of these countries.
- If, at the time of the conclusion of the agreement, only one of the spouses has his habitual residence in a participating Member State and if this State lays down additional formal rules for this type of agreement, these rules apply.
For example, additional formal rules may exist in a participating Member State when the agreement is inserted into a marriage contract. It could also be the requirement of an authentic act, of a deposit before a clerk, or the registration of the agreement in a special register.
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The applicable law in the absence of choice by the parties
In the absence of a choice of applicable law by the spouses, the regulation introduced conflict of laws rules establishing a scale of successive connecting factors based on the existence of a close link between the spouses and the law concerned where the habitual residence figure in first place,
Article 8 of the regulations provides that:
“In the absence of a choice in accordance with Article 5, divorce and legal separation are subject to the law of the State:
- the habitual residence of the spouses at the time of the referral to the court; in the absence of,
- of the last habitual residence of the spouses, provided that this residence did not end more than one year before the seisin of the court and that one of the spouses still resides in this State at the time of the seisin of the court jurisdiction; in the absence of,
- the nationality of the two spouses at the time of the referral to the court; in the absence of,
- of which the court is seized. »
According to article 10, the law of the court seized will apply "when the law applicable according to articles 5 or 8 does not provide for divorce or when it does not grant to one of the spouses, because of his belonging to one or the other sex, equal access to divorce or legal separation".
This rule is intended to avoid discrimination.
The effects in France of divorce judgments pronounced abroad
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Judgment issued by a Member State of the European Union
Acknowledgment: according to article 30 of the Brussels II ter Regulation ( formerly 21 of the Brussels II bis Regulation), foreign divorce judgments issued in a Member State are automatically recognized in the other Member States where they are invoked.
However, the regulation provides for an exhaustive list of grounds for non-recognition, in particular if the decision is manifestly contrary to public order (Art. 22 Brussels II bis and 38 Brussels II ter).
In other words, divorce judgments rendered in one of the Member States, subject to their regularity, produce in France, without exequatur, the following effects:
- They allow spouses thus divorced to remarry in France.
- They lead to the dissolution of the community for spouses married under a community regime and make it possible to request in France the liquidation of the matrimonial regime.
If the liquidation is done amicably, the exequatur will not be necessary, if it is contentious, it can only be done after exequatur.
Mention of the judgment in the margin of the civil status records: no procedure is required for updating the civil status registers of a Member State on the basis of a decision rendered in another Member State (art. 30, 2 Brussels II ter and 21-1 of Brussels II bis)
Forced execution: the effects of divorce or legal separation are not governed by the regulations but by common law. It will be necessary to obtain an exequatur to proceed with the forced execution.
On the other hand, with regard to the compensatory allowance, enforcement will be carried out in accordance with commodity regulation no. 4/2009 of 18 December 2008 relating to jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters of maintenance obligations.
With regard to divorce without a court, the Brussels II ter Regulation now provides automatic recognition in the other Member States of authentic instruments and "agreements" relating to legal separation and divorce registered in a Member State whose jurisdictions are competent (art. 64 and 65).
However, recognition may be contested.
At the request of a party, it is provided that a certificate from the authority of origin be issued, under certain conditions, so that the agreement is recognized and executed (art. 66 Brussels II ter and annex VIII). Decree No. 2023-25 of January 23, 2023, designated the president of the judicial court as the sole competent authority to establish these certificates.
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Judgments from a third country
French private international law, ordinary law, applies.
Extra-patrimonial effects, relating to the status of persons, will in principle be recognized as of right (Jurisprudence of the Court of Cassation, Beckley, February 28, 1860)
The patrimonial effects will have to receive the exequatur both for the recognition and for the forced execution.
http://www.lexinter.net/JPTXT2/divorce_a_l'etranger.htm
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