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Jurisdiction: international divorces within the EU

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Jurisdiction: international divorces between French citizens and non EU citizens

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The applicable law

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Enforcement of the divorce judgement

PacisLexis Family Law

International divorce lawyer

The laws governing divorce and its procedure differ from country to country.

When spouses are of different citizenships, reside in a foreign country, own property in various parts of the world or have any other international component to their relationship, divorce proceedings may be affected

In cases of international divorce, 3 main questions arise:

  • What is the competent jurisdiction for the matter?
  • What law is applicable to the divorce proceedings?
  • How is the divorce applicable and binding in other countries?

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Jurisdiction : international divorce within the EU

What is jurisdiction?

Jurisdiction is defined as the power to apply the law.

In international divorce proceedings, jurisdiction is the ability for a court to rule on the divorce and its consequences. It is important to determine which country or court has jurisdiction in your case.

What is a conflict of jurisdiction?

When the spouses’ relationship has an international component and two or more countries are involved, there is a conflict of jurisdiction.

It means that, at first glance, several countries or court may have jurisdiction in the case.

To give a good example, if you were married in France but have lived in Spain for the entire duration of your marriage, French and Spanish courts may both have jurisdiction to rule on your divorce.

Conflicts of jurisdiction in international divorce cases are usually settled through the application of international treaties and laws.

What is the applicable regulation to determine jurisdiction in international divorces within the EU?

Brussels II ter is the applicable regulation. Its guidelines are useful to resolve any conflict of jurisdiction within the EU on questions such as legal separation, annulments, divorce and parental authority.

What countries are bound by Brussels II Ter rules?

27 EU countries have ratified Brussels II Ter: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.

However, Brussels II ter is  not applicable to Denmark.

Member states are bound by these regulations and must apply to the rules.

According to Brussels II ter, which State has jurisdiction in an international divorce?

The country that has jurisdiction is, according to article 3:

  • The member State where the spouses have their habitual residence
  • If the spouses have the same citizenship, the member State of their citizenship.
What is considered as soupses family home?

The term “family home” has not been statutorily defined.

The family home of the spouses is where they reside with their family and have built their life together. The couple must show longevity and attachment to a home for it to be considered their family home.

For instance, a holiday home that the couple spends their week-end or summers in, situated in a foreign country, would not be considered the family home of the family, and the State would not have jurisdiction to hear the divorce case.

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Jurisdiction : international divorce within the EU: …Next

Do the rules specifically determine which judge has jurisdiction and may hear the case?

No!

While Brussels II bis will help parties determine which member State has jurisdiction, it does not determine which specific judge will hear the case.

 The parties will have to refer to the State’s legislation to identify the relevant court for their case, in terms of subject matter and location.

 n France, the “juge aux affaires familiales” is competent to hear divorce cases, as per the civil procedure Code.

In Common Law countries, the competent court in divorce proceedings are Family Courts.

Which State is competent to rule on a conversion from legal separation to a divorce?

When spouses ask that their legal separation be converted to a divorce, the court that pronounced the legal separation is competent to hear the case.

What happens if no member State has jurisdiction to hear my case according to Brussels II ter?

If the rules set out in Brussels II bis articles 3, 4 or 5 do not designate a competent member State, then the first seized member State court will have jurisdiction and will hear the case.

This is called residual jurisdiction.

What happens if a State’s legislation is different from Brussels II ter?

For EU member States, Treaties are the supreme law of the land and are superior to national legislation.

Brussels II ter will thus be applicable even if it is contrary to national legislation of a specific member State.

What happens if the spouses seize the wrong judge?

Article 17 of Brussels II ter requires the judge to examine if he has jurisdiction to hear the case. If he does not, he must declare himself incompetent.

In practice, he will apply the rules of Brussels II ter and indicate to the parties which judge is competent for their divorce proceedings.

My spouse and I both brought the divorce case before two different courts in two different member States, what will happen?

When two different courts are seized by the spouses in an international divorce, it is what is called a case of lis alibi pendens. It is a latin phrase meaning “the dispute is pending elsewhere”.

In this case, it will be essential to determine which court was seized first. The second court will not issue a ruling as long as the first court has not ruled on its own jurisdiction.

  • If the first court determines it has jurisdiction to hear the case, the second court will automatically refuse to hear the case
  • If the first court determines it does not have jurisdiction, the second court will be able to hear the case.

In practice, the risk of lis alibi pendens often lead spouses to a race to seize the jurisdiction more advantageous to their situation. This was particularly true in Anglo-French divorces.

Do the lis alibi pendens principles still apply in Anglo-French divorces after the Brexit?

No!

Because of the Brexit, English courts are not bound by Brussels II bis anymore.

This means that English courts will not automatically decline to rule on a divorce case even if a French court has been seized first anymore.  

The English court will determine if it has jurisdiction based on which country the spouses and their relationship are more connected to.

Are the same rules applicable in case of an emergency?

No!

In case of an emergency, any member State has jurisdiction to enforce temporary measures. For example, any judge may allow one of the spouse to reside separately from their partner in a case of domestic violence.

However, this exceptional jurisdiction is only applicable to temporary measures. Only the competent jurisdiction according to Brussels II bis rules will be able to definitely rule on the divorce.

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Jurisdiction: international divorces involving French citizens and non EU citizens

Which State has jurisdiction in divorce proceedings when the family home of the spouses is in France?

According to article 1070 of the French civil procedure Code, the French judge has jurisdiction in all cases where the habitual residence of the spouses is in France.

The French judge will also have jurisdiction if the children of the spouses live in France.

Which State has jurisdiction when one of the spouses is French?

A French spouse may always seize French jurisdictions to rule on a divorce, even if the other spouse is a foreign citizen.

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The applicable law to an international divorce

What is a conflict of laws?

When there is an international component to a case, the laws of two or more countries may be applicable. This is what we call a conflict of laws.

Before hearing the facts of a case, it is necessary to determine which rules and laws will be applicable to it.

Sometimes, the parties will have decided in their prenuptial agreement which law they wish to be applicable to their divorce proceedings.

Otherwise, the judge will look at international law rules to determine what law is applicable to the spouses’ specific divorce case.

Is there a difference between jurisdiction and applicable law?

Yes!

Jurisdiction means determining which court and judge is able to hear the case.

The applicable law is the law that said competent judge will have to decide the case according to.

Does the court that has jurisdiction always apply its own national laws to an international divorce?

No!

Jurisdiction and applicable law are separate elements. If the applicable law is foreign, the judge will not use its own national laws to rule on the case.

Thus, it is possible for a French judge to rule on a divorce case and apply Spanish or American laws.

Are there EU regulations that determine the applicable law to divorce proceedings?

Yes, partially!

EU regulation n°1259/2010, also called “Rome III” determines the applicable law in legal separation and divorce proceedings.

This regulation does not determine the applicable law to financial matters in divorce proceedings, such as liquidation of the matrimonial regime or compensatory allowances.

This regulation is only binding to member States of the enhanced cooperation: Austria, Belgium, Bulgaria, France, Estonia, Greece, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Portugal, Romania, Spain and Slovenia.

What happens if both spouses agree on the law they wish to apply to their divorce proceedings?

EU Regulation Rome III allows spouses to choose the law that will be applicable to their divorce.

When spouses agree on the applicable law, they will draft an agreement and submit it to the competent judge.

Article 5 of the Regulation dictates that the following national laws may be applicable:

  • Law of the country to which the spouses have great connection because of their habitual residency in said State
  • Law of the country where the last habitual residence of the spouses was set, if one of them still resides there
  • Law of the country of citizenship of one or both spouses
  • Law of the country of the court that was seized for the divorce proceedings.

 

Warning: The spouses may not choose to apply the law of a country to which their family has no connection. For example, if French spouses live in Spain, they may not choose to apply Italian law to their divorce proceedings. If they attempt to do so, the competent judge may refuse. 

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The applicable law to an international divorce:… Next

What are the requirements for an agreement of the spouses on the applicable law to be valid?

The agreement must be:

  • In writing
  • Dated
  • Signed by both spouses
If one or more spouse changes their mind about the agreement on the applicable law, may they change it?

Yes!

This agreement is a contract. It can be modified by the parties until the competent jurisdiction is seized.

What happens if the spouses disagree on the law they wish to apply to their divorce proceedings?

If the spouses do not agree on the applicable law, the competent judge will determine it by applying the tests set out by Regulation Rome III.

Article 8 of the regulation states that the applicable law to divorce proceedings is, in order:

  • The law of the country of the habitual residence of the spouses,
  • The law of the country of the last habitual residence of the spouses, if said residence hasn’t ended more than a year prior to the proceedings and one of the spouses still resides in the country,
  • The law of the country from which both spouses are nationals,
  • The law of the country of the competent jurisdiction seized.
When applying the Rome III test, can the applicable law to a divorce be a country that is not party to the treaty?

Yes!

Rome III is universally applicable. It is applicable even if the designated law is of a country that is not party to the treaty or the enhanced EU cooperation.

As soon as the court seized is within a country that is part of the enhanced EU cooperation, the Rome III regulation will be applicable, even if the law is of a country that is not a party.

This is important to note, especially since the UK is no longer a member. Judges may still apply UK law to divorce proceedings.

Are there other international treaties that may determine the law applicable to an international divorce?

Yes!

There are several bilateral international conventions (i.e. that binds only the ratifying parties) in family law matters such as divorce.

As of today, there is no bilateral treaty between England and France that determines the applicable law

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Enforcement of the divorce judgement

A divorce judgement was rendered by a member State of the EU, is it directly recognized in other member States?

Yes!

Judgements rendered by court of the member states are directly subject to recognition in other member states.

This automatic recognition allows for the decision to be transcribed into civil registers.

Are there instances where a divorce judgement is not automatically recognized by other member States?

Yes!

A member state may refuse to recognize a divorce judgement.

This happens when:

  • When the judgement is contrary to public policy;
  • When the national law of the State would not allow for a divorce under the circumstances.
Is a divorce judgement directly enforceable in other EU States?

Yes!

Judicial decisions rendered in member States of the EU are directly enforceable in other member States without the need for an exequatur procedure.

The claimant must only provide the original decision in order to prove it is executory in the State of origin.

A divorce judgement was rendered by a foreign country that is not a member of the EU, is it directly recognized in France?

No!

To be enforceable in France, the foreign judicial decision must be expressly recognized in what is called an efficacy procedure.

This procedure aims to verify that the judgement is not detrimental to French public policy.

The spouses must contact the French prosecutor of the court 

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