Anticipating international family issues: seven questions to ask

On March 8, 2024, the ACE (Avocats Conseils d’Entreprises), a French business lawyers’ association, invited Bérangère Diot and me, both members of the Paris bar, to share our advice and reflexes for anticipating family issues in an international context. Marriage, moving abroad, a parent relocating: choices made upstream prevent many disputes. Here are the key takeaways, with selected excerpts from the training materials.

Why plan ahead? Because litigation always raises the same questions

We started from what happens when nothing has been planned. In a contested separation, the first question is the habitual residence of the spouses, partners or cohabitants: it determines which court has jurisdiction and which law applies. It is a factual concept, defined by the Court of Justice of the European Union and adopted by the French Supreme Court (Cour de cassation); it differs from domicile, is assessed differently for an adult and for a child, and can be established quickly, since no minimum period applies.

Next come the applicable instrument and the competent court. First reflex: split the situation into blocks, the divorce itself, the children, support obligations, the division of the matrimonial property regime (régime matrimonial) or civil partnership (PACS). Then look for a bilateral convention, a multilateral convention and, failing that, the EU regulations. The grounds of jurisdiction for divorce are alternative, hence a risk of forum shopping. To ascertain foreign law, use the available databases and portals, or a colleague in the country concerned.

When to file and in what form

Fourth question: when to file? Within the EU, the court seized second stays its proceedings and then declines jurisdiction if the first court has jurisdiction; the whole difficulty lies in the date of seizure. Outside the EU, lis pendens is governed by bilateral conventions, such as the Franco-Moroccan convention, or by general law, which requires that the expected foreign decision be capable of recognition in France.

Fifth question: in what form? A French divorce by mutual consent signed by the parties’ lawyers (divorce par consentement mutuel) is not recognized in every country, with the risk that its financial, property or child-related terms cannot be enforced abroad. The solution may be a court divorce on joint petition with approval of the agreements, or court approval of a parenting agreement. Conversely, a foreign parenting agreement that has not been approved by a court may not be recognized in France.

The property regime and the children’s relocation

Sixth question: has the property regime changed? For spouses married between September 1, 1992 and January 28, 2019 inclusive, the law governing their regime may have changed automatically, in particular after more than ten years of residence in a new State. The change applies only for the future: two successive regimes, for instance a foreign-law separation of property followed by the French statutory community. The remedy: choose the applicable law, before the marriage or during it.

Seventh question: what happens if a parent leaves with the children? Without the other parent’s consent, and between two States party to the 1980 Hague Convention, it is a wrongful removal that may lead to an order for return. With both parents’ consent, the change in the child’s habitual residence entails a change of court and of applicable law. Absent agreement, the other parent must be informed and, if they object, the family court judge (juge aux affaires familiales) must be seized.

Putting it into practice: a business owner moving to London

The case study featured a French business owner and his future wife, an American living in London, who wish to marry, settle in London and determine now the consequences of a divorce or a death. The answers draw a clear line: one contract only, a French marriage contract or a prenuptial agreement, since signing two may call the validity of the first into question; and, if it must be recognized in England, separate legal advice for each spouse and full disclosure of assets and income.

Absent a choice, English law would govern the divorce, the property regime and support here. The future spouses may choose the law applicable to these three matters, but not to parental responsibility; they may choose the court for support, the property regime and, under conditions, parental responsibility, but not for the divorce. On the estate side, an international will is preferable for its stronger formal validity, and a trust, hardly recognized in France, is best avoided.

Key takeaways

1. 1Start with habitual residenceIt determines the court and the law; it can be established quickly and is proven by facts.
2. 2Split the situationDivorce, children, support, property regime: each block has its own instruments.
3. 3Choose the right formA divorce without a judge does not travel everywhere: check recognition before choosing the procedure.
4. 4Check for automatic change of lawFor marriages between 1992 and 2019, a choice of law avoids two successive regimes.
5. 5Anticipate a parent’s relocationInform the other parent, obtain their consent or the court’s authorization.
6. 6Provide for amicable solutionsClauses referring disputes to amicable methods prepare the enforcement of agreements.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.