International divorce: is the French judge competent?Clint GOFFIN VAN AKEN
International divorce ? How it works ? In which country to divorce ? Is the French judge competent ? How to proceed ?
We are talking about “international divorce” when there is a connection with a country other than France.
This is the case when at least one of the two spouses is of foreign nationality or/and one of them resides in a country other than France.
Private international law must then be applied.
Concretely two main questions will arise :
- What is the competent jurisdiction to pronounce my divorce ?
- What is the law that will apply to my divorce ?
Be careful, these two questions are not necessarily linked because the French court can quite apply the law of another State in matters of international divorce.
In order to find the competent judge, it is a must first of all to verify that there is or not a link between the spouses with a Member State of the European Union.
In the event of a connection with a Member of State of the EU
This is the case when :
- one of the spouses has the nationality of one of the EU states
- one of the spouses resides in one of the countries of the EU
In this case, the divorce will have an international feature, and more particularly a European character. It will then be necessary to apply the rules based on a European Union regulation called « Règlement Bruxelles II bis ». The latter concerns the competence, recognition and enforcement of judgments in matrimonial matters and parental responsibility.
Under this regulation, several competent jurisdictions may be designated.
For example, the German court is competent in application of the rules of the règlement Bruxelles II bis as usual residency of the spouses. Simultaneously the French courts are also competent to rule on divorce as both spouses have the French nationality.
In this case, it is the Court that has been first referred that will will be able to judge the case. The other one will have to get declined.
It is therefore imperative for the spouse who wishes to divorce before French court, to introduce the application as soon as possible. In any case, faster than his spouse.
If you wish to avoid the many cost and drawbacks of the procedding abroad, it is very advisable to consult an expert lawyer in international divorce.
In General, the French courts are competent in matters of ‘ European ‘ divorce when both spouses are of French nationality, even if they reside in another State of the Union.
The French court may also be competent, in certain cases, when the spouses or one of the spouses have their usual residence in France.
In the absence of a connecting link with a Member State of the European Union
This is the case for example when you got married in Moscow with a Ukrainian person and you lived in Russia before getting separated with your husband and return to France while leaving the children with the father.
In this context, the French rules of private international law will have to be applied.
Art.1070 of our code of civil procedure then provides that if the parents no longer live together, the competent court shall be that of the “place of residence of the parent with whom the minor children habitually reside in the event of joint exercise of parental authority, or of place of residence of the parent exercising this authority alone”. In our hypothesis, it will be the judge from Moscow.
However, if you disagree with the measures taken concerning your children, you can always turn to the French judge. Your lawyer can advise you.
The French family court judge will be competent if :
- the family residence is located in France
- one of the spouses resides in France with his minor children
- the spouse who did not take the initiative of divorce residency in France
The rule still changes in the case of a joint diivorce request.
However, in general, the residence criteria is a fundamental point for designating the competent judge.
The Code of Civil Procedure specifies that the residence to be taken into account is the one that exists on the day that the initial petition for divorce is filed. It must be stable and usual.
Failing to find the competent judge, it is also possible to attribute the jurisdiction to the French courts in consideration of the criterion of the French nationality of the applicant or the defendant.
What is necessary to keep in mind :
Getting divorced in an international context is therefore particularly delicate and requires advice from a lawyer, especially when the couple have children and a heritage to share.
We also insist on the fact that it is not because the competent court will be the French court that necessarily the French law will be intended to apply. The two questions are not necessarily related.
Your reactivity to act and consult an expert lawyer in international divorce is therefore essential to preserve your interests.