Which laws will apply to our divorce?
Bringing a case before a French judge does not necessarily mean that French law will apply. It is essential to distinguish between the competent court and the applicable law. Even if your case is heard by a judge in France, the judge may be required to apply foreign law, depending on your nationality or habitual residence.
The applicable law can have a significant impact on your rights and on the divorce proceedings. 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 regime;
● The rules on compensatory payments or alimony may be more or less favorable depending on the country;
● Parental authority, the residence of children, and visitation rights sometimes follow specific cultural and legal principles.
Within the European Union, a regulation determines the law applicable to your divorce:
If you file with a judge in a participating EU Member State, the Rome III Regulation will determine the law applicable to your divorce or legal separation.
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 country of your common habitual residence,
– failing that, the law of the country of your last common residence of less than one year, if one of you still lives there,
– failing that, that of your common nationality,
– failing that, the country of the court hearing the case.
Thus, the French court may apply foreign law if 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 specializing in international family law, will advise you on the law that best meets your needs and will provide you with his expertise to support you and develop a tailor-made international strategy.