International divorce and parallel proceedings: the expert private international law workshop at the 2021 forum

On January 28, 2021, at the French national forum on family and property law (États généraux du droit de la famille et du patrimoine), held entirely online that year, I spoke in the expert private international law workshop on comparative international divorce proceedings, alongside Maxime Eppler (Paris), William Healing (London), Maud Troalen (Versailles and Berlin) and Arnaud Gillard (Brussels). Three hours comparing the French, English, German and Belgian perspectives. Here are the key takeaways, along with the presentation materials.

When the other spouse files abroad

Following Maxime Eppler's analysis of how the French divorce procedure reform affects international cases, I addressed parallel proceedings. Within the European Union, lis pendens (litispendance) requires the court seized second to decline jurisdiction: Article 19 of the Brussels II bis Regulation for divorce and parental responsibility, Article 12 of Maintenance Regulation No. 4/2009, and Article 17 of the Regulation of June 24, 2016 on matrimonial property regimes. That is the race to the courthouse.

With a court in a non-EU State, the logic changes. Absent a convention, the foreign court has no duty to decline, and a French court seized second does so only at its discretion (Article 100 of the French Code of Civil Procedure), after checking that the foreign judgment will meet the requirements of international validity: a sufficient connection with the foreign court, compliance with substantive and procedural international public policy, and no fraud. Two traps to avoid: claims that do not have the same subject matter, and losing the extension of jurisdiction when habitual residence changes during the proceedings.

Internal conflicts of laws also matter. In a federal or regional State, local rules add to those of the central State; in some States, the spouses' religion determines the applicable law, and even the competent authority. Hence two questions to ask every client: their religious affiliation, and the local unit concerned.

The limits of lis pendens as strategic tools

These limits can be used to secure the French court's jurisdiction when that serves the client. With common law countries, which apply forum non conveniens, filing first achieves nothing: the strategy is to bring the dispute closer to France. Between Member States, Article 15 of the Brussels II bis Regulation allows child-related issues to be transferred to a better-placed court, provided the child has a particular connection with that State, the transfer serves the child's best interests and it brings real added value.

The race to the courthouse is also turning into a race to judgment: under the CJEU's Liberato judgment (January 16, 2019, C-386/17), a decision handed down by the court seized second, in breach of lis pendens, must still be recognized. Keep the French proceedings from dragging on. Other tools remain: provisional measures, available even before a court lacking jurisdiction on the merits (Article 20 of the Brussels II bis Regulation, Article 14 of the Maintenance Regulation); a jurisdictional challenge, to be raised in limine litis under the procedural rules of the country concerned; and, as a last resort, an inopposability action (action en inopposabilité) against the foreign judgment, a kind of reverse exequatur.

Paths to settlement in an international divorce

My second presentation covered out-of-court options suited to international divorce, after Maxime Eppler set out the limits of some of them. Court approval of parenting agreements can rescue the recognition abroad of a divorce by mutual consent (divorce par consentement mutuel): where the court of the children's residence considers itself solely competent for them, or where the foreign State would not recognize the child-related terms of the divorce agreement, having a parenting agreement approved, by the foreign court or the French court, secures their application. This option is worth exploring before ruling out an out-of-court divorce.

International family mediation, especially co-mediation with one mediator in each country, is particularly suited when one spouse wants to return home and the children's residence seems intractable; approval of the agreement by the courts of both countries secures its recognition. Arbitration, an alternative rather than amicable process, can settle the financial aspects of a divorce quickly, flexibly and with technical expertise, and awards circulate under the 1958 New York Convention.

The English, German and Belgian perspectives

My colleagues completed the picture. William Healing presented the new English no-fault divorce and the impact of Brexit on the race to the courthouse, marital agreements and the enforcement of financial orders. Maud Troalen explained German divorce procedure, the optional Franco-German matrimonial property regime, how Germany receives the French divorce by mutual consent, and the hearing of children by German judges. Arnaud Gillard analyzed jurisdiction issues, the advantages of Belgian procedure and recent Belgian private international family law decisions.

Key takeaways

1. 1Identify the applicable lis pendens ruleMandatory between EU Member States, it is only discretionary with a non-EU State (Article 100 of the French Code of Civil Procedure).
2. 2Plan ahead with common law countriesUnder forum non conveniens, filing first is not enough: bring the dispute closer to France.
3. 3Watch the length of proceedingsSince Liberato, the first judgment handed down may prevail.
4. 4Challenge jurisdiction in timeIn limine litis, under the procedural rules of the country concerned.
5. 5Ask the right questionsReligious affiliation and the local unit can change both the court and the law.
6. 6Secure the agreementApproved parenting agreements, co-mediation and approval in both countries make the settlement effective.

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. State of the law as of January 28, 2021.