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The French court first applies the rules of Regulation (EC) 2201/2003 (“Brussels II bis”) which determines the jurisdiction of an EU Member State in matters relating to divorce on the following alternative grounds:
■ habitual residence of spouses;
■ last habitual residence of spouses, insofar as one of them still resides there;
■ habitual residence of the respondent;
■ in the event of a joint application, habitual residence of one spouse;
■ habitual residence of the applicant who resided there for at least a year immediately preceding the application;
■ habitual residence of the applicant who resided there for at least six months immediately preceding the application and is either a national of the Member State in question; or
■ nationality of both spouses or, in the case of the United Kingdom and Ireland, domicile of both spouses.
Case law defines habitual residence as the country where a party has fixed his permanent or habitual centre of his interests. This is a question of fact.
If no EU jurisdiction is designated by the Brussels II bis Regulation, the French court shall have jurisdiction according to French internal rules, which are mainly based on the French citizenship of petitioner or defendant.
Even though the French court has jurisdiction to pronounce the divorce, its jurisdiction regarding ancillary matters is not automatic. In relation to:
■ parental responsibility, the Brussels II bis Regulation is applied (article 8 to 15);
■ maintenance obligations, Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation is applied; and
■ the division of assets, French jurisdiction is determined on the ground of the residence of the family or defendant in France or the French nationality of one spouse.
1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce?
Divorce may be pronounced on the grounds of:
■ mutual consent (uncontested divorce). This divorce needs an agreement of both parties on the principle of divorce and all its consequences;
■ acceptance of the principle of the breakdown of the marriage. The spouses agree on the principle of the divorce but disagree on matters related to children and ancillary relief, which are dealt by the family judge;
■ definitive alteration of the bond of marriage. It is automatically pronounced by the court if one spouse establishes two years of separation without reconciliation at the time of lodging the petition for divorce (this is the second step of the divorce process, cf. question 1.4 below); and
■ fault. It is pronounced when a party establishes facts which constitute a serious or renewed violation of the duties of marriage which render marital life unbearable.
1.3 In the case of an uncontested divorce, do the parties need to attend court?
The law changed in November 2016 on the subject of uncontested divorces. Any mutual consent divorce filed post-January 1, 2017 only needs to be lodged at the rank of the minutes of a notary (except in cases where a child asks to be heard). Parties no longer need to attend court.
1.4 What is the procedure and timescale for a divorce?
Except in the case of a divorce by mutual consent, divorce is obtained in a two-stage process:
■ Interim measures step: the applicant lodges a divorce request first at the local family court; after a preliminary hearing where the presence of the parties is required, an interim order is delivered where the family affairs judge mainly authorises the spouses to live separately, determines custody and visitation rights over the children during the procedure, sets temporary maintenance for the impoverished spouse and the children and authorises one spouse to stay in the matrimonial home.
■ Divorce step: one spouse lodges the divorce petition up to 30 months after the temporary order; the judge pronounces the divorce, states once more on custody and visitation rights over the children, and the maintenance for the children, determines the financial support to be paid for the “impoverished spouse” (compensatory allowance) and proceeds to the division of assets in accordance with the matrimonial property regime of the parties.
1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances.
No, except in cases where the French court has no jurisdiction on these issues.
1.6 Are foreign divorces recognised in your jurisdiction?
If a divorce is ordered in an EU Member State (except Denmark): the EU decision is automatically recognised, with some exceptions (articles 21 and 22 of Brussels II bis Regulation).
If a divorce is ordered in a non-EU Member State: in the absence of a specific bilateral or multilateral international convention regarding the recognition of foreign judgments, foreign divorces are recognised in France through a specific proceeding, as long as the following conditions are satisfied:
■ the jurisdiction of the foreign court: there shall be strong connection factors of the case with the foreign jurisdiction, and the French court will not have exclusive jurisdiction over the case;
■ the compatibility of the foreign judgment with French “public policy”: this provision includes the requirement of a fair process and also the control of the foreign order; and
■ the absence of fraud: the French court confirms that the petitioner did not fraudulently evade another law.
1.7 Does your jurisdiction allow separation or nullity proceedings?
Both exist.
An application for a decree of judicial separation (“séparation de corps”) can be lodged if one of the grounds for divorce exists; most of its provisions are similar to the divorces’ provisions. This procedure authorises spouses to live separately. The other duties of the marriage remain.
The annulment of the marriage shall be obtained: if the essential requirements for the formation are not met (an error as to the identity of the person or her/his substantial characteristics, duress); in the case of absence of authorisation on the part of the legal representative of one spouse (for example if they are a minor, etc.); in the case of non-respect of the minimum age to marry; in the case of bigamy; or in the case of incest.
1.8 Can divorce proceedings be stayed if there are proceedings in another country?
The process of staying the French divorce procedure depends on the foreign jurisdiction in which proceedings were first started:
■ If the applicant first started proceedings in a European Union country. The French judge informed of this other petition is obliged to stay its proceedings until such time as the jurisdiction of the first jurisdiction where proceedings were first started is established, and once established, is obliged to decline jurisdiction in favour of that court (article 19, Brussels II bis Regulation).
■ If the applicant first started proceedings in a non-European Union country and no international convention is applied, the defendant is entitled to apply to stay proceedings before the French court (international lis pendens). The French family judge has no obligation to stay proceedings or deny its jurisdiction and will scrutinise all the connecting factors of the case with France and the other country and will check that the foreign order can be recognised in France once it has been rendered.
