Nowadays, couples are increasingly deciding to celebrate their marriage abroad. Sometimes some of these couples are “mixed” couples meaning they do not have the same nationality. In addition, couples tend to live in several cities during their marriage. Is it possible for a couple who has contracted a marriage abroad to divorce in France? Under which conditions? The assistance of an attorney is necessary to guide you in your divorce proceedings in France. Picovschi lawyers, competent in family law, can help you navigate throughout this difficult time.
What are the different forms of divorce ?
There are many types of divorce from which a couple can choose. Article 229 of the French Civil Code sets out 4 cases of possible divorce, which are divorce by mutual consent, divorce by acceptance of the principle of marriage breakdown, divorce for permanent alteration of the marital relationship, and divorce for fault.
Divorce by mutual consent without a judge is now possible since January 1st, 2017. This allows spouses not to submit their divorce to the judge’s control. In order to resort to this type of divorce, the spouses should agree on the principle and consequences of their break-up. The lawyer has an essential role in this type of divorce.
The other cases set out in Article 229 of the French Civil Code are all subject to judicial procedures.
Divorce for acceptance based on the principle of separation may be sought where both spouses agree on the principle of divorce but not on the consequences which will be subject to the discretion of the judge.
Moreover, divorce for permanent alteration of the marital relationship is requested by one of the spouses provided that the life together between the spouses has ceased and the spouses have been living separately for 2 years from the date of the divorce summons. The Programming Law 2018-2022 and Reform for Justice provides for a reduction in the time required for divorce for permanent alteration of the marital relationship, which, from September 1st 2020, will be 1 year (modification of Article 238 of the French Civil Code).
Divorce for fault is requested by one of the spouses who reproach certain facts to his spouse constituting a serious or renewed violation of the obligations of marriage making intolerable the maintenance of the common life such as domestic violence, infidelities, insults among others.
The French jurisdiction over marriage contracted abroad
In order to determine whether the French courts will have jurisdiction to settle a divorce contracted abroad, it will be necessary to distinguish nationality from couples who wish to divorce.
In case both spouses or only one of them is French:
Articles 14 and 15 of the French Civil Code establish a privilege of the French courts for French people wishing to divorce in France while applying French law to the divorce, that is even if one of the spouses is French or both live abroad.
A European community regulation entitled Brussels II bis, adopted on November 27th 2003, applies to any action brought after March 1st 2005 in all Member States of the European Union except Denmark.
Actions for divorce, annulment of marriage and legal separation all fall within the scope of the Regulation.
According to Article 3 of the Regulation, the actions mentioned above will be settled by the French courts if:
- The habitual residence of the spouses in French territory, or
- The last habitual residence of the spouses in French territory to the extent that one of them still resides there, or
- The defendant’s habitual residence in French territory, or
- In the case of a joint application, the habitual residence of either spouse is located in French territory
- The applicant’s habitual residence in French territory if he has resided there for at least one year immediately before the application is made, or
- The applicant’s habitual residence if the applicant has resided there for at least six months immediately before the application and is a French national
In all other cases of foreign nationalities of the spouses:
In order for the French judge to be competent to judge divorce, one of the following criteria needs to be located in France:
- Place of family residence
- If the spouses live separately, the place where one of the two spouses reside with the children or if
- The respondent’s place of residence
In the presence of a joint application, the habitual residence of either spouse
The importance of the law applicable to divorce
Divorce and legal separation are governed by French law in two specific cases set out in Article 309 of the French Civil Code. First, both spouses must have French nationality, otherwise both spouses must have their residence on French soil.
However, in all other cases involving mixed couples, it will be for the French court seized to determine which foreign law is applicable to the divorce of the spouses. Respect for international public order will limit the application of foreign law if, for example, it is based on the prohibition of divorce or the possibility of divorce.
Spouses are also free since the European Regulation of June 21st 2012 "Rome III Regulation" to choose the law applicable to their possible divorce from the 4 criteria set out in the Regulation.
Picovschi lawyers, with their experience in international law and family law for more than 30 years, will defend your interests throughout the divorce proceedings. Our firm accompanies its clients during these steps that tend to be challenging.