Do French courts always have jurisdiction?

In an international context, your family situation may involve several countries: different nationalities, residence abroad, marriage celebrated in another country, property acquired outside France, etc. In this case, this is referred to as a foreign element (élément d’extranéité). This means that, in theory, several courts may have jurisdiction.

The French judge therefore does not automatically have jurisdiction. They only have jurisdiction if specific criteria are met. Habitual residence (résidence habituelle), the place where a person has established the stable and permanent center of their interests, is a key criterion.

If one of you resides in the European Union: in matters of international divorce, these criteria are set out in particular by the Brussels II ter Regulation, which applies to all Member States of the European Union, with the exception of Denmark. Thus, the French judge has jurisdiction if:

• you both habitually reside in France;
• your last common habitual residence was in France and one of you still resides there;
• the respondent spouse habitually resides in France;
• in the case of a joint application, one of you habitually resides in France;
• the spouse applying for divorce has resided in France for at least one year immediately before the application (six months if they are French);
• you are both French.

It is possible that several courts may be seized simultaneously. Within the European Union, the court first seized then has priority, and the other must stay its proceedings. This is referred to as “lis pendens” (litispendance).

If you are outside the scope of the European Regulation: if one of the spouses lives outside the EU or is a national of a third country, French rules of jurisdiction may apply and give jurisdiction to the French judge. Thus:

• Article 1070 of the French Code of Civil Procedure designates the family court judge (juge aux affaires familiales) with jurisdiction according to the residence of the family or of the parent who looks after the children;
• Articles 14 and 15 of the French Civil Code allow a French national to bring a case before the French courts, even if the other spouse is a foreign national or resides abroad, and allow a foreign national to sue a French national before them.

In urgent cases, a court that does not have jurisdiction may issue provisional decisions

Even if the French judge does not have jurisdiction over the merits of the divorce, he or she may, in exceptional cases, take protective measures, particularly if you and/or your children are in danger. However, these measures are temporary, do not prejudge which court has jurisdiction to settle the dispute definitively, and may be called into question by the competent judge.

Gaëtan Escudey, a lawyer practicing international family law, can assist you in determining the jurisdiction of the judge and developing an international strategy according to your needs.

This general information does not replace a consultation: each situation requires individual assessment.