Is French law always applicable?

Bringing a case before a French judge does not necessarily mean that French law will apply. It is essential to distinguish between the court with jurisdiction and the applicable law. Indeed, even if your case is heard by a judge in France, that judge may be required to apply foreign law, depending on your nationality or your habitual residence (résidence habituelle).

The applicable law can have a significant impact on your rights and on the course of your divorce. Not all national laws have the same rules on the conditions and effects of divorce. For example:

• The division of your property varies according to the applicable matrimonial property regime;
• The rules on compensatory allowance or maintenance (prestation compensatoire, pension alimentaire) may be more or less favorable depending on the country;
• Parental authority (autorité parentale), the residence of children, and visitation rights sometimes follow specific cultural and legal approaches.

Within the European Union, a regulation determines the law applicable to your divorce

If you bring your case before a judge in a European Union Member State that participates in the regulation, the Rome III Regulation will determine the law applicable to your divorce or legal separation (séparation de corps).

1. You can choose the applicable law together if you have a sufficient connection to it: nationality of one of the spouses, current or former residence, etc. This choice is formalized in a written agreement. It allows you to anticipate the legal effects of your separation.
2. If you have not made a joint choice, the applicable law will be determined according to several successive criteria:

• the law of the State of your common habitual residence at the time the case is brought before the judge;
• failing that, the law of the State of your last common habitual residence, if it did not end more than one year before the case was brought before the judge and one of you still resides there;
• failing that, the law of your common nationality;
• failing that, the law of the court seized.

Thus, the French judge may perfectly well apply foreign law, as long as the criteria of the regulation so require.

If your situation concerns a country outside the European Union, other conventions may apply

In some cases, bilateral conventions signed between France and a foreign country determine the applicable law (e.g., even if your divorce is granted in France, it may be subject to Moroccan law if the conditions of this convention are met).

Gaëtan Escudey, a lawyer practicing international family law, will advise you on the law that best meets your needs and will bring you his expertise to support you and develop a tailor-made international strategy.

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