In the context of a Franco-Vietnamese divorce, the question is often asked when one of the French spouses wishes to divorce, the latter wishing to know if it is more relevant for him to first return to France to launch divorce proceedings before the French judge? Reminder of the international rules of jurisdiction of the international divorce judge.
Article :
The hypothesis of a binational marriage is increasingly common.
My firm, Laurent Latapie Avocat, in partnership with a colleague in Hanoi, Vietnam, is particularly interested in the hypotheses of separation and divorce for Franco-Vietnamese couples.
However, inevitably, divorce becomes particularly complex when the spouses have different nationalities, French-Vietnamese, or reside in different countries, sometimes even neither in France nor in Vietnam.
Determining the jurisdiction of the judge is then crucial when the couple separates.
This article explores the principles and regulations under the law within international divorces, French-Vietnamese divorces, drawing on concrete case law and applicable legislative texts.
It is necessary to examine how the criteria of habitual residence, nationalities and international conventions, such as the Brussels II bis Regulation, or even the Hague Convention, influence judicial jurisdiction, thus providing a clear understanding of the procedures, of a judicial decision and the challenges linked to cross-border divorces as well as their transcription in the countries of origin.
1/ Jurisdictional competence in terms of divorce and the European system: the Brussels II bis Regulation
The Brussels II bis Regulation (Regulation (EC) No. 2201/2003) is the main instrument governing jurisdiction, recognition and enforcement of decisions in matrimonial matters within the European Union.
This regulation defines precise criteria for determining the jurisdiction of the courts in the event of divorce when the spouses reside in different Member States.
Among these criteria are the habitual residence of the spouses, the last common habitual residence, the habitual residence of the defendant and in certain cases, the common nationality of the spouses.
The regulation aims to provide legal certainty and avoid contradictory decisions by setting clear rules on jurisdictional competence.
It also facilitates the recognition and enforcement of divorce judgments in all EU member states, ensuring greater consistency and efficiency in the handling of cross-border matrimonial cases.
2/ Setting the criteria for jurisdictional competence
The regulation sets out several criteria, including:
○ The habitual residence of the spouses.
○ The last habitual residence of the spouses, if one of them still resides there.
○ The habitual residence of the defendant.
○ In the event of a joint application, the habitual residence of one of the spouses.
○ The habitual residence of the applicant if he or she resided there for at least one year immediately before submitting the application.
○ The nationality of both spouses or, for the United Kingdom and Ireland, their “domicile”.
3/ At the international level, the strength of The Hague Convention
Outside the EU, divorce jurisdiction may be governed by the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.
This convention aims to harmonize the rules for recognizing divorces pronounced abroad, thus facilitating the mutual recognition of divorce decisions between the signatory States.
It establishes uniform criteria for the recognition of divorces, such as the competence of the court which granted the divorce and respect for the rights of the defense.
By ensuring easier and faster recognition of foreign divorce judgments, the convention helps avoid conflicts of law and situations of « legal imbroglio » where a divorce is recognized in one country, but not in another.
Thus, it plays an essential role in the management of international divorces, by offering increased legal certainty to the people concerned.
4/ Which competent judge in France for an international divorce?
In France, jurisdiction in matters of divorce is governed by the Civil Code, specifically by articles 1070 to 1072.
These articles define the criteria according to which French courts may have jurisdiction to hear divorce applications.
Article 1070 stipulates that territorial jurisdiction belongs to the judge of the place where the spouses reside.
If they live separately, the competent judge is that of the place where the spouse lives with the minor children or, failing that, that of the place where the spouse who has not initiated the procedure lives.
Article 1071 specifies the terms of referral to the court, while article 1072 deals with cases where one of the spouses is found to reside abroad, in Vietnam or in another country.
These criteria aim to ensure judicial proximity with the parties and to guarantee that the court seized is best able to handle the case fairly and efficiently.
French jurisprudence on international divorce is mainly based on the Brussels II bis Regulation and the Hague Convention.
French courts establish their jurisdiction by verifying the habitual residence of the spouses or the French nationality of one of the spouses.
When the divorce is pronounced in Vietnam, its recognition in France is not easy either and depends on the regularity of the procedure and respect for the rights of the defense.
The Court of Cassation clarified that the law applicable to a divorce decision may be that of the country where the procedure was initiated, unless it is manifestly incompatible with French public order,
French judges also assess financial consequences and child custody according to the principles of French justice, seeking to protect the interests of vulnerable parties and children.
5/ Determination of habitual residence
The notion of habitual residence is central in determining jurisdiction in an international Franco-Vietnamese divorce.
It refers to the place where a person has established, in a stable and lasting manner, the permanent center of his or her interests.
This residence is not simply a temporary place to stay, but a place where the person lives on a regular basis and where their main personal, professional and social ties are located.
Stability and the intention to stay play a crucial role in this definition.
Habitual residence is used as a criterion to determine which court has jurisdiction, thereby ensuring that the places of jurisdiction are relevant and significantly linked to the daily lives of the spouses.
In the context of a Franco-Vietnamese divorce, the question is often asked when one of the French spouses wishes to divorce, the latter wishing to know if it is more relevant for him to first return to France to launch divorce proceedings before the French judge.
The Court of Justice of the European Union (CJEU) has clarified the notion of habitual residence through several decisions.
For example, in case C-497/10, PPU Wednesday, the CJEU highlighted the importance of considering the person’s intentions regarding the duration and stability of their residence.
The Court indicated that habitual residences imply not only a physical presence in places, but also the intention to establish oneself there in a lasting manner.
This interpretation takes into account various factors, such as the reasons for the stay, family and social ties and the person’s future plans. This case law is essential for determining jurisdictional competence in international divorce matters within the EU.
6/ The nationality of the spouses and jurisdictional competence
The nationality of the spouses, whether French or Vietnamese, can also influence the determination of jurisdiction in divorce matters.
In certain cases, jurisdiction may be based on the common nationality of the spouses, thus facilitating the divorce procedure in a country where both spouses have legal and cultural ties, whether in France or Vietnam.
This rule ensures that the court seized is relevant and has the necessary means to handle the case fairly.
For example, a French court may have jurisdiction to hear a divorce request if both spouses are of French nationality, even if they reside in Vietnam. This nationality criterion strengthens legal certainty and the effectiveness of international divorce procedures.
Thus, the French judge may have jurisdiction to hear a divorce request if both spouses are of French nationality, even if they reside in Vietnam.
This rule allows citizens in France to seek divorce before the courts of their country of origin, thus ensuring a certain legal and cultural continuity.
The Civil Code provides for this possibility to guarantee that spouses can access justice that is familiar and consistent with their nationality.
Thus, a couple of French nationals living in Vietnam can contact the Family Affairs Judge in France for their divorce.
This provision strengthens the protection of the rights of French spouses abroad, in Indonesia and facilitates procedures by allowing them to handle their matter in a known legal system adapted to their specific needs.
7/ Recognition, transcription and execution in France of divorce judgments rendered by the Vietnamese judge
Within the EU, divorce judgments made in one Member State are automatically recognized in other Member States without the need for a special procedure.
This automatic recognition is provided for by the Brussels II bis regulation, which aims to facilitate the free movement of judicial decisions on matrimonial matters within the EU.
Thus, once a divorce judgment is pronounced in one Member State, it is immediately applicable and enforceable in all other Member States, thus simplifying the administrative and legal procedures for the spouses.
This legal harmonization contributes to greater security and efficiency in the management of cross-border divorces within the EU.
However, recognition of a divorce judgment may be refused in certain cases, in particular if it is manifestly contrary to the public policy of the requested State.
This exception makes it possible to protect the fundamental values and essential legal principles of each Member State.
For example, a divorce decree could be rejected if it seriously violates the fundamental rights or standards of justice of the state where recognition is sought.
This public policy clause ensures that, despite the automatic recognition of divorce judgments within the EU, states retain the possibility of protecting their essential legal and social interests.
However, fortunately, this is not the case with the Franco-Vietnamese divorce judgment.
8/ The synergy between French lawyer and Vietnamese lawyer
The synergy of the firm of Laurent Latapie Avocat and his Vietnamese counterpart is decisive and makes it possible to finalize a Franco-Vietnamese divorce in the best possible conditions.
Indeed, an international divorce remains a complex and constantly evolving subject, European regulations, international conventions and national legislation all play a crucial role in international divorces.
Case law, both at national and international level, provides essential clarifications for the application of jurisdiction criteria.
The challenges posed require increased harmonization of laws and strengthened international cooperation to ensure fair and efficient procedures for the spouses involved.
The lawyer, for an international divorce, must be able to enlighten you on the following points:
- Competence in international law: Make sure that your legal professional has expertise in private international law, particularly in matters of divorce and separation. Check their qualifications and experience in similar matters.
- Knowledge of the jurisdictions: A lawyer familiar with the laws and procedures of the countries involved is essential. They must understand the legal differences between jurisdictions and know which law applies to your situation. The synergy of the French lawyer with the Vietnamese lawyer is decisive in facilitating procedures both in France and in Vietnam.
- Language and communication: Mastery of the languages of the countries concerned is an asset. Good communication with your marriage dissolution lawyer is essential, both for mutual understanding and for negotiations with the opposing party.
- Availability and listening: A good European divorce and separation lawyer must be available to answer your questions and concerns. Your legal professional must also demonstrate empathy and understand the personal issues of your situation.
- Cost and transparency: The issue of fees is also a source of concern. This is why the fees offered are often flat-rate in order to ensure real visibility and real adaptability in terms of budget.
The question of a Franco-Vietnamese divorce must therefore be addressed on both sides of the two countries, France and Vietnam, to ensure maximum legal security in both countries. The spouses, French or Vietnamese, must be assisted by competent and trusted counsel to support them in their international Franco-Vietnamese divorce.
Article written by Maître Laurent LATAPIE,
Lawyer in Fréjus, lawyer in Saint-Raphaël, Doctor of Law,
www.laurent-latapie-avocat.fr
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