Laurent Latapie avocat droit routier
Laurent Latapie avocat droit routier

In the context of a Franco-American divorce, what about the enforceability of an American judgment in France, when the said American judgment rules out the application of a French marriage contract of separation of property, signed by the parties in the authentic form and received by a French public officer?




It is worth looking at a case law that was issued just before Christmas 2020 and which addresses the particularity of the exequatur in France of a divorce judgment that was pronounced abroad.


In this case, the question that arose was to know under what conditions the French judge could grant exequatur and thereby verify the international regularity of the foreign decision.


It should be remembered that in the context of an exequatur procedure, the French judge must ensure that the decision rendered by the foreign judge must comply with international public order of substance and procedure and must demonstrate ‘an absence of fraud, as Article 569 of the Code of Civil Procedure recalls.


What are the facts of the case?


In this case, Mr. Z of French nationality and Mrs. I of Russian and American nationality were married in Paris on May 28, 1991 under the regime of separation of property following a marriage contract received by a French notary on May 21, 1991.


They subsequently settled in the United States where their two children were born.


Subsequently, however, the couple broke up,


Divorce proceedings in the USA


Madame I had then, on November 8, 2001, seized the Supreme Court of the State of New York with a petition for divorce and by decision and order of June 28, 2002, the New York judge had rejected Mr. Z tending to the validation and enforceability of the marriage contract concluded in France in order to make it applicable and enforceable on American soil.


The American judge, deciding to rule out the application of the French marriage contract.


A second New York judge then rendered a trial decision on October 3, 2003 then a judgment of divorce on January 9, 2004, pronouncing the divorce to the exclusive wrongs of the husband, entrusted the custody of the minor children to the mother with a right of visit and accommodation for the father’s benefit by specifying that the mother should consult the father on all significant decisions concerning the children but that she would have the final decision-making power, set the terms of the father’s contribution to maintenance and education children, awarded the wife a monthly alimony for seven years and ruled on the liquidation of the patrimonial interests of the spouses.


At appeal level, this judgment had been partially reformed by a decision of the Court of Appeal of the State of New York of May 3, 2005 which specified in particular that the entire balance of the proceeds from the sale of the he New York apartment was to belong to Mr. Z.


The exequatur procedure in France


Subsequently and by deed dated February 9, 2005, Madame I had seized the Tribunal de Grande Instance of Paris with a request for exequatur of the American decisions of October 3, 2003 and January 9, 2004 in their only provisions relating to pensions. food.


It was within the framework of this exequatur procedure that Mr. Z had then requested that the judgment of June 28, 2002 be declared unenforceable in France.


Therefore, the question arose as to the conditions under which the French judge in his mission of exequatur of the foreign divorce decision should intervene.


Should the French judge then also rule out the French marriage contract through exequatur?


The first plea raised by Mr. Z in the context of this challenge to the exequatur consisted in considering that the decision which had been rendered by the Judge on June 22, 2002 could not be declared enforceable in France because it did not comply with the French international public order.


The latter considered that the requirement of impartiality of the Judge as provided for and required by Article 6-1 of the Convention for the Protection of Human Rights and Fundamental Freedoms had not been respected.


In response, the Court of Cassation recalls on this first plea that in application of article 509 of the Code of Civil Procedure, in the context of an exequatur procedure, and this, outside any international convention or bilateral convention , the French judge must verify the international regularity of the foreign decision by ensuring that it fulfills the conditions of indirect jurisdiction of the foreign judge based on the connection of the dispute to the forum seized of conformity with the substantive international public order and of procedure and absence of fraud.


The Court of Cassation also recalling that under Article 6-1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to have their case heard fairly, publicly and in a timely manner. reasonable time by an independent and impartial tribunal established by law which will decide either on disputes over her civil rights and obligations or on the merits of any criminal charges brought against her.


Therefore, it was necessary to verify the course of the American procedure in which Mr. Z considered that as a French national he had not had the favor of the American judge who had preferred to privilege by right Mrs. I, of Russian nationality and especially American would have lacked impartiality.


However, the Court of Cassation notes that the assessment made by the Judge did not fall within any hostile bias.


On the other hand, the measures taken were based on objective elements drawn from the personal situation of the parties.


But above all, Mr. Z had been able to exercise legal remedies since he had appealed against the decision, which allowed him to have his case heard before another court whose impartiality was not in dispute.


This was therefore likely to exclude any infringement of his rights.


What about the marriage contract for separation of property?


In addition, Mr. Z criticized the American judgment for having rejected without any valid reason the authentic French document received by a French public officer in the name of the French Republic, so that the rejection by the American judge of the French marriage contract was necessarily contrary to international public order.


In support of his argument, Mr. Z maintained that the choice of French family law, embodied in the authentic instrument had been a basis for forecasts for the parties, perfectly legitimate forecasts since the authentic instrument was valid in France.


So that the French marriage contract had to become binding in France, even if the American judge had, in his decision of June 28, 2002, peremptorily rejected the French authentic act.


Thus, the agreement concluded between the parties to the marriage contract was necessarily valid in France.


Mr. Z considering that the American judge violated French international public order as well as article 509 of the Code of Civil Procedure, as well as the principles which govern private international law.


It was therefore necessary to consider that, assuming that the marriage contract of separation of property by a French authentic instrument received by a French public officer in the name of the French Republic was set aside by a foreign judgment, it did not remain. less than the foreign judge had to at least take into account as a simple element of appreciation and equitable distribution operated by him at the time of liquidating the matrimonial regime of the spouses.


Consequently, Mr. Z considered that by declaring the American judgment of June 22, 2002 enforceable in France whereas he had set aside the marriage contract concluded in France, the latter did not respect the principles which govern private international law.


This all the more so since the marriage contract had crystallized the freedom for the spouses to choose the law applicable to their matrimonial regime and hence the marriage contract in that it determines the matrimonial regime guaranteed legal security and respect for legitimate expectations of the spouses.


In this way, he had to liquidate the patrimonial interests of the spouses in accordance with French law on the separation of property, chosen by the spouses at the time of marriage.


Mr. Z reproaching the American judge for having refused purely and simply to take into consideration the marriage contract and the common will of the spouses thus expressed by liquidating the patrimonial and pecuniary interests of the two divorced spouses, the American judge relying on the provisions of the law of the State of New York by simply rejecting the regime of marriage contract of separation of property chosen by the spouses at the time of their marriage.


This question was at the heart of the debates.


What about the opposability of an American judgment in France, when the said American judgment excludes the application of a French marriage contract of separation of property, signed by the parties in the authentic form and received by a French public officer?


However, the Court of Cassation considers that a decision rendered by a foreign court, which by application of its national law refuses to give effect to a marriage contract received in France is not in itself contrary to international public order. French substantive and can only be ruled out if it concretely enshrines a situation incompatible with the principles of French law considered essential.


In this decision, the Court of Cassation recalls that the dispute relates essentially to the life of the couple in the United States and the spouses immediately established themselves after the marriage and have continued to reside there.


This is also where their children were born and where the husband obtained diplomas and developed various professional activities and where the couple’s real estate assets were finally located on the day of the divorce petition.


So that to distribute the common property in proportion of 75% to the wife and 25% to the husband, the American judge could proceed to the liquidation of the patrimonial interests to the spouses according to the principle of equitable distribution in accordance with the matrimonial regime in force. in the United States and in the state of New York.


The New York judge had moreover taken into account the income and expenses of the parties and the consequences of the common choices made during the marriage, so that nothing provided by Mr. Z suggested that there was a disproportionate nature in the effects resulting directly from the American decision rendered and for which the exequatur was requested.


The Court of Cassation considering that the dispute was essentially linked to the United States and that the foreign decision in application of the law of the forum for the liquidation of the economic rights of the spouses had not concretely established a situation incompatible with the principles essentials of French law.


Consequently, it was necessary to reject the argument relating to the concept of irreconcilability, and that neither the principle of the freedom of matrimonial agreements of public order in domestic law nor the objectives of legal certainty and foreseeability invoked. could stand in the way of recognition in France of the American decision.


The last point of concern for Mr. Z was the issue related to the exercise of parental authority, which falls under French international public order.


However, he criticized the foreign divorce judgment for nullifying the joint exercise of parental authority by giving the mother the right to make all decisions concerning the children alone without any justification other than the bad mutual relations between the parents. thus violating the essential principle of French law based on the equality of parents in the exercise of parental authority.

Indeed, Mr. Z did not accept the fact that American judgments provided that the final decision would in all cases rest with the mother, thereby depriving the father of any parental authority.


A final point was also raised by Mr. Z


Exequatur and parental authority


Here again, the Court of Cassation considers that if the principle of equality of parents with regard to parental authority falls within French international public order, the circumstance that a foreign decision reserves to one of the parents the care of take certain decisions relating to children alone, not in accordance with the principles of parental authority as enshrined in French law.


However, the Court noted that the American decision which organizes the rights of visits and accommodation of the father taking into account the geographical distance of the latter in accordance with the agreement of the parties, provides him with regular meetings with his children during the school year and the holidays.


The Court then held, with regard to the modalities of exercise of parental authority, that the American judgments were based on the recommendations of an expert psychiatrist in order to reserve the final decision for the mother in the event of disagreement,


The American judge justifying his decision by underlining, on the one hand, the bad relations between the parents who did not manage to discuss the issues of the education of their children through the divorce proceedings, and on the other hand, by the interest for children to avoid constant conflicts concerning their lives.


The Court finally recalls that these judgments recall the duty to consult the father, to take his preferences and concerns and to try to include him in the significant events in the life of the children.


Thus the Court of Cassation considered that the American decision showed that the measures relating to the children had been adopted by reference to their best interests and that the rights of the father had not been disregarded, the latter having to be , each time, consulted before any decision.


The Court of Cassation thus decides that the American decision should be recognized in the French legal order in the absence of violation of international public order.


It is in these circumstances that Mr. Z’s appeal is dismissed.


 This case law, which addresses several points, is interesting in several ways.


It highlights the possible paradoxes of the exequatur procedure.


Two lessons stand out.


First, it is clear that the marriage contract of separation of property cannot necessarily survive beyond French borders, which must lead every French national settling permanently abroad to transpose this French separatist marriage contract. in local law.

Second, it perfectly illustrates the procedural difficulties specific to the exequatur procedure by not losing sight of the need to defend oneself properly in the country where the divorce procedure is initiated, and this, without waiting to see the foreign decision exequatur. in France.


The synergy between foreign law firms and French lawyers remains more than ever a necessity, hence the investment of Maître Laurent Latapie, French lawyer, in the International Union of Lawyers.



Article written by Maître Laurent LATAPIE,

Lawyer, PhD, Doctor of Law,

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