Laurent LATAPIE Avocat Docteur en Droit
Laurent LATAPIE Avocat Docteur en Droit

Divorce in France of spouses of foreign nationality, and outside the EU, is it possible if the place of residence of the parent with whom the minor child or children usually resides in the event of the joint exercise of parental authority is inFrance ? Is the French family court judge competent? Example of a Moldavian-Russian divorce under the jurisdiction of a French family court judge.

Article :

It is worth looking at a case law that was recently issued in June 2020 and which addresses the issue of the application of the Brussels 2 regulation, in matters of international divorce Even so, and this is the peculiarity of this case law, we would not only be dealing with an intra-European divorce.

 

Reminder of the facts of this international divorce:

 

In this case, Mr C of Moldovan and Romanian nationality and Mrs J of Bulgarian and Russian nationality, were married in Chisinau, in the Republic of Moldova.

 

Madame J a, by request of October 13, 2017, filed a request for divorce with the Family Affairs Judge in France.

 

By order of January 18, 2018, rendered by default, the French family court judge had, after having retained his own jurisdiction, that is, the jurisdiction of the French judge in application of French law relating to the divorce of spouses, maintenance obligations and liability. parental.

 

The French family court judge therefore issued an order of non-conciliation of the spouses and, at the same time, prescribed the measures necessary to ensure the residence of the wife and that of the children, living in France, until the date on which the divorce judgment would have become final.

 

On the conflict of jurisdiction and jurisdiction:

 

However, Mr C, for his part, argued that on June 28, 2017, he himself had seized for the same purposes of divorce, the Moldovan judge, who by a decision of December 15, 2017, appealed against by Mrs J had pronounced the divorce of the spouses and had fixed the residence of the minors with the father in Moldova.

 

Therefore, which decision to apply and which competence to retain?

 

Mr. C, taking advantage of these proceedings in Moldova, had then strongly contested, before the Court of Appeal, the jurisdiction of the French judge in favor of the Moldovan jurisdiction.

 

The question arose as to whether or not the French judge was competent even if he pronounced the provisional measures ending the marriage between two people who were not of French nationality, were not even within the competence of nationality. intra-European and who had otherwise married and had even fixed their first common residence outside the European Union, and in this case, in Moldova.

 

The divorce proceedings initiated in Moldova had not slowed down the French judge, who, as part of his French proceedings, had retained the application of the European regulation Brussels 2 bis to recognize the jurisdiction of the French court and thus rule on the provisional measures in the context of divorce proceedings initiated by the wife, in France.

 

However, the difficulty is that the Brussels 2 regulation on the competence for the recognition of the enforcement of judgments in matrimonial matters and in matters of parental responsibility entering into force in 2005 is intended to regulate only the relations between nationals of the European Union.

 

Which was not the case with the Republic of Moldova

 

Indeed, the Republic of Moldova being an independent state, had not yet joined the European Union and was therefore not subject to the internal regulations that governed it.

 

It should be remembered that the rule of conflict of jurisdictions is governed in French law by Articles 14 and 15 of the Civil Code which recognizes the jurisdiction of French courts in the event of a dispute between a foreigner and a French person.

 

These texts of domestic law therefore do not seem to be applicable in the present case since neither of the two spouses had French nationality.

 

All the more so as no bilateral agreement had been concluded between France and the Republic of Moldova, establishing specific rules on conflict of jurisdictions.

 

In such a way that it was necessary to apply private international law and therefore to turn to the Hague Convention and to look at the couple’s first domicile and the place of marriage which suddenly could generate jurisdiction in France.

 

While it is true that the couple had lived in France, neither of them had French nationality and the marriage had not been celebrated in France, which posed difficulties.

 

All the more so as they had strong ties with the Republic of Moldova.

 

Indeed, Mr C. was of Moldovan nationality.

 

Their marriage had been celebrated and the latter owns a family home in which the couple and their children regularly went to spend their holidays.

 

All these elements also explained that Mr. C had seized the Moldovan jurisdiction in July 2017 to initiate divorce proceedings.

 

So that Mr. C considered that Ms. J was in complete bad faith in instituting a second divorce proceeding through a request filed in France before the French Family Affairs Judge.

 

This commented case law recalls, however, that EC regulation n ° 2201/2003 of 27 November 2003 constitutes the common law of member states in matrimonial matters.

This applies once one of the competence criteria set out in Article 3 is met.

 

It does not matter that the spouses are nationals of a non-member state of the European Union.

 

Is the French family court judge competent?

 

To understand, in application of the ordinary rules of international jurisdiction, the French courts obtained by extension to the international order of the rules of internal territorial jurisdiction which take precedence over the exorbitant rules of articles 14 and 15 of the civil code, the business judge French family is competent.

 

Thus, the divorce in France of spouses of foreign nationality, and outside the EU, is perfectly possible if the place of residence of the parent with whom the minor child or children usually resides in the event of the joint exercise of parental authority is in France.

 

It was therefore up to the French Family Affairs Judge to verify whether the habitual residence of Mrs J with her children was indeed in France and not in Moldova.

 

And in such a case, that would justify the competence of the French jurisdiction with regard to the Brussels 2 bis regulation.

 

While it is true that French private international law does not know the forum rule, this does not suit the rule which offers the judge of the forum to decline jurisdiction for a court of a state with which the dispute represents strong support, the fact remains that, notwithstanding the existence of perhaps stronger links between the dispute and Moldova, the Brussels 2 bis regulation would allow referral to the French courts.

 

The Court of Cassation rightly considers that the visa of article 3 of regulation 2201/2003 of 27 November 2003 “Brussels 2 bis” relating to jurisdiction, recognition and enforcement of decisions of  » a regime in matrimonial matters and in matters of parental responsibility, that it follows from this text that a court of a Member State is competent to hear a petition for divorce when the alternatives of jurisdiction are located on the territory of that state.

 

It is immaterial whether the spouses are nationals of a third state or whether the defendant spouse is domiciled in a third state.

 

This decision is interesting.

 

It specifies that when a spouse is domiciled in France with his children, regardless of whether he is a citizen of foreign nationality, even outside the European Union, he has the right to refer the matter to the French Family Affairs Judge to consider a procedure. of divorce and fix all provisional measures for the spouses and for the children, until the divorce is definitively pronounced, and this, regardless of the nationality of the spouses and the nationality of the children.

 

Article written by Maître Laurent LATAPIE,

Lawyer, Doctor of Law,

www.laurent-latapie-avocat.fr

 

 

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