Lawyer international divorce Paris
Divorce can be national but also international as soon as there is a connecting element to France.
Traditionally, when spouses, at least one of whom is French, live abroad, divorce could take place in France.
One of the two who is French could invoke the right to be tried by a French court, which is called the privilege of jurisdiction.
Divorce could also be pronounced in France when spouses both foreigners live in France.
In the latter case, the French judge could even apply their national law.
The EC regulations of May 29, 2000 and then of November 27, 2003, which came into force on March 1, 2005, profoundly modified the rules of jurisdiction relating to international litigation in matters of international divorce.
The regulation of November 27, 2003 sets the rules of conflicts of jurisdictions within the European community: the national law of rules of conflicts of jurisdictions will only apply in the cases where the Community rules could not apply.
But at the same time, these Community rules have widened the scope of the French judge who may be seized in cases where national law did not allow it.
The European regulation of November 27, 2003 (Brussels II bis) applies in the Member States in matters of marriage, divorce, parental authority and visiting rights.
The Brussels II bis regulation also regulates jurisdiction in the Member States in the event of the unlawful removal of children, in addition to the Hague Convention of 25 October 1980 on the civil aspects of international child abduction.
It is the regulation of May 29, 2000 (Brussels I) applicable generally in civil or commercial matters which was intended to apply in matters of maintenance obligations, before June 18, 2011. In fact, since that date, regulation 4/2009 on maintenance obligations (which has a universal vocation) has entered into force.
These regulations are in no way applicable in matters of succession and matrimonial property regimes. For matrimonial property regimes, it is the Hague Convention of March 14, 1978, which came into force on September 1, 1992, which will have universal application.
However, it should be noted that if the regulation resolves conflicts of jurisdiction, it does not resolve conflicts of laws. When a matrimonial proceeding takes place before a court of a Member State, the applicable law used to be determined according to the national conflict rules of that State; in France it was by article 309 of the Civil Code. But since June 21, 2012, Council Regulation 1259/1010 of December 20, 2010 came into force, which sets out provisions relating to the law applicable to divorce.
The novelty of this regulation is to determine the applicable law with great innovation, the possibility for the spouses to choose by mutual agreement, the law applicable to divorce.
These regulations should have a universal vocation.
Outside the European framework, international lis pendens can play a role. Indeed, if the Brussels II bis regulation does not apply, the lis pendens are international.
There is international lis pendens when two jurisdictions are seized in two different countries. It is then the French mechanisms of Private International Law that will play a role, except the specific Franco-Moroccan Convention.
In case of lis pendens, the French judge is not obliged to decline jurisdiction, especially if he was seized before the other court.
When one of the courts has rendered its decision, it is no longer a question of lis pendens, but of recognition of the decision.
Foreign divorce decrees have full effect in France, on condition that they have not been fraudulently delivered, and that they comply with French international public order (for example certain foreign judgments which do not respect certain procedural rights such as the rights of defense, or judgment which admit repudiation, have been considered contrary to the international public order).
The case of divorce by international mutual consent
Under French law, it is no longer possible to divorce by mutual consent before a judge. The legislator decided that since January 1, 2017, divorces by mutual consent were no longer pronounced by a judge.
The divorce agreement by mutual consent is signed by the spouses, countersigned by their lawyers and then registered by a notary at the rank of his minute.
The European Court of Justice (CJEU) has qualified this type of divorce without a judge as a private agreement. Indeed, there will be no judgment, but the divorce agreement will take place.
The Court of Justice therefore considered that this divorce by mutual consent without judge did not fall within the scope of the European Regulation known as "Brussels II bis".
In other words, these French divorces by mutual consent without a judge should not circulate in the Community. In any case, they are not recognized by many countries.
For example, a spouse who has dual nationality and who divorces by mutual consent in France, will be surprised to discover that if he is divorced in France, the other country of which he is a national will not recognize divorce by mutual consent without a judge and will consider him as still married.
To avoid this kind of disappointment, it is advisable for spouses, when there is an international element to the case, to find an agreement and to divorce by accepted divorce, in order to obtain a divorce judgement recognized in all countries.
Ask your international family law lawyer in Paris for advice in order to study your request and be guided in your efforts.
See also :