I am French or reside in France, does the French judge necessarily 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, we refer to foreign elements. This means that, in theory, several jurisdictions may have jurisdiction.
The French court therefore does not automatically have jurisdiction. It only has jurisdiction if specific criteria are met. The habitual residence, i.e., 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 Regulation, which applies to all Member States of the European Union, with the exception of Denmark. Thus, the French court has jurisdiction if:
● You both habitually reside in France,
● Your last common habitual residence was in France and one of you is still there,
● One of you has been residing in France for more than one year (or six months if he or she is French),
● If you have jointly filed a request in France and one of you resides in France.
It is possible that several courts may be seized simultaneously. In this case, the first court seized has priority, and the other must stay proceedings. This is referred to as “lis pendens” rule.
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, making the French court competent. Thus:
● Article 1070 of the Code of Civil Procedure designates the family court judge with jurisdiction according to the residence of the family or the parent who has custody of the children;
● Articles 14 and 15 of the Civil Code allow a French citizen to bring a case before the French courts even if the other spouse is a foreign national or resides abroad, or allow a foreign national to bring a case before the French courts against a French citizen.
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 and do not prejudge the court with jurisdiction to settle the dispute definitively and may be reviewed by the competent judge.
Gaëtan ESCUDEY, a lawyer specializing in international family law, can assist you in determining the jurisdiction of the judge and developing an international strategy according to your needs.