The private international family law seminar of the Bordeaux Master 2 program (2020–2025)

Since 2020, I have taught a private international family law seminar at the University of Bordeaux for students in the Master II in International Law. The approach stays the same from one session to the next: connecting conflict-of-laws and jurisdiction rules to the way an international family case is actually handled, from litigation strategy to out-of-court solutions. Here are the key takeaways.

Building an international litigation strategy

The seminar starts from one observation: an international family dispute breaks down into several questions (divorce, maintenance, matrimonial property, parental responsibility), each governed by its own rules on jurisdiction and applicable law, whether European or treaty-based. The first reflex is to identify the foreign elements precisely and prove them, then check, for each question, which court has jurisdiction and which law applies.

On jurisdiction, I stress the race to the courthouse between EU Member States, where lis pendens (litispendance) requires the court seized second to decline jurisdiction (Article 20 of the Brussels II ter Regulation, formerly Article 19 of Brussels II bis; Article 12 of the Maintenance Regulation), whereas with other States the forum non conveniens approach makes that race pointless. Provisional measures remain available before a court without jurisdiction on the merits, under Article 15 of the Brussels II ter Regulation for children (formerly Article 20 of Brussels II bis) and Article 14 of the Maintenance Regulation.

On applicable law, the connecting factors (habitual residence, closest connection) leave room for financial and personal planning, subject to overriding mandatory rules such as the mandatory primary regime of Articles 212 to 226 of the French Civil Code. I also flag the automatic change of matrimonial property regime under Article 7 of the 1978 Hague Convention. Finally, a judgment is only worth something if it can be enforced where the assets are: exequatur, inopposability actions (action en inopposabilité), European certificates.

Measuring the limits of litigation

Some limits are legal: parallel proceedings, conflicting decisions that do not recognize each other. Others are human: time, the cost of proceedings and translations, exhaustion, the distortion of reality and the damage done to the relationship. That is why planning ahead matters, through choice-of-law and choice-of-court clauses, in particular in a marriage contract or prenuptial agreement, after checking the conditions for their recognition.

To establish the content of foreign law, I present the practitioner's tools: JaFBase and comparative law encyclopedias, followed by confirmation from a foreign colleague, where needed in the form of a legal opinion.

Out-of-court options suited to international families

The second part covers amicable resolution. The collaborative process fits poorly with an international case, since it requires the parties not to go to court; the participatory procedure (procédure participative) remains available. A divorce by mutual consent (divorce par consentement mutuel) always calls for checking its recognition abroad: the CJEU has held that the Rome III Regulation does not apply to a private divorce (CJEU, December 20, 2017, Sahyouni); since August 1, 2022, however, the Brussels II ter Regulation (Article 65) has ensured recognition within the EU of divorce agreements with binding legal effect, which covers the French agreement, with a certificate. Outside the EU, approval by a foreign court is sometimes required, especially for arrangements concerning children.

International family mediation addresses parenting issues: remote co-mediation, overcoming distance, language and cultural barriers, the role of the French International Family Mediation Unit in abduction cases, and double court approval of the agreement. International family arbitration addresses financial issues: its scope is narrowed by the non-disposable nature of some rights, but the procedure is fast, technical and confidential, and awards enjoy international recognition under the 1958 New York Convention.

2025: when public international law enters the divorce

The January 2025 session looked at how private international law rules apply alongside public international law. The case study, invented for the exercise, involved the divorce of a couple living in New York, one spouse having become an international civil servant at the UN. Each advising one spouse, students had to determine the competent court and the law applicable to the divorce and its financial consequences, then answer less familiar questions: does the spouse enjoy immunity from jurisdiction or from enforcement? Does it bar the divorce court's jurisdiction, then the recognition of the judgment? Is an out-of-court divorce possible, and would it be recognized in New York?

A second case, also invented, applied these questions to a child's removal involving a parent in line for an ambassador's post: would immunity bar the return application or the recognition of a return order, and is an amicable return, or even international family mediation, conceivable?

Sessions

• November 13, 2020International family disputes: litigation strategy, the limits of litigation, mediation and international family arbitration.
• 2021Annual private international family law seminar for the Master 2 program.
• November 18, 2022Private international family law seminar for Master 2 International Law students.
• October 23, 2023Private international family law seminar: international divorce, children, matrimonial property and succession.
• 2024Annual private international family law seminar for the Master 2 program.
• January 17, 2025Private international law rules in the face of public international law: the divorce of an international civil servant and immunities.

Key takeaways

1. 1Reason question by questionDivorce, maintenance, matrimonial property and parental responsibility each follow their own jurisdiction and applicable-law rules.
2. 2Mind the race to the courthouseDecisive between EU Member States, it loses its point with States applying forum non conveniens.
3. 3Aim for enforcementA judgment is only useful if it can be enforced where the assets are.
4. 4Plan ahead by contractChoice-of-law and choice-of-court clauses are prepared before the dispute, after checking their recognition.
5. 5Check recognition of an amicable divorceA divorce by mutual consent must always be tested against the law of the country where it will take effect.
6. 6Raise the immunity questionWhen one spouse is a diplomat or international civil servant, it arises at the very first meeting.

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.