How a couple separates depends on the type of union they choose. For married couples, one must pay attention to the jurisdiction in which the divorce will be filed. Despite the standardization of rules on jurisdiction and applicable laws under European law, many differences remain in terms of how this type of dispute is handled, which may lead to very different results from one country to another.
No particular rules cover the breakup of a PACS or a partnership as such, which means that, today, the jurisdiction of French courts to rule on the termination of a PACS or a partnership rests on rules of ordinary law, otherwise known as national jurisdictional rules extended to the international level. The law that applies at separation will be that of the authority that recorded the partnership; this law will also apply to property consequences for partnerships that began before 29 January 2019.
However, for registered partnerships entered into after January 29, 2019, the law that applies to assets will be determined by the provisions of Council Regulation 2016/1104 of 24 June 2016 on the property consequences of registered partnerships. This Regulation allows partners to choose the law that applies to the property consequences of their contract.
The Regulation also lays out the jurisdictional rules that apply to disputes regarding property consequences of the partnership.
The jurisdiction of a court to decree divorce or separation when there is a foreign element is determined by the rules of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, referred to as Brussels II Bis.
The French family affairs court may have jurisdiction to rule on a couple's divorce if:
The provisions of Regulation (EU) 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, referred to as Rome III, determines the law that applies to a divorce. Prior to filing a divorce or separation petition, spouses may sign an agreement in which they choose the law that applies to such proceedings.
If the spouses do not make a choice, the law that applies to divorce and separation will be the law of the country:
France has also entered into bilateral agreements with certain countries which provide for specific rules.
When a couple gets divorced, the question also arises of which court has jurisdiction to rule on maintenance support between spouses, i.e., the obligation of support and compensatory allowance. These issues are governed by Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. With respect to applicable law, Regulation (EC) No. 4/2009 refers to the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations which, in principle, grants jurisdiction to the law of the place of habitual residence of the individual who owes the maintenance obligation. However, Article 5 of the Hague Protocol of 2007 makes it possible to contest the application of the law of the place of habitual residence of the one who owes the maintenance obligation by establishing that another law is more closely linked to the dispute.
Liquidation of a matrimonial property regime under private international law requires us to first determine the law that applies to the spouses' matrimonial regime.
If the spouses got married before 1 September 1992, they were permitted to freely choose the applicable law as part of their marriage contract. If they did not make a choice, the Court of Cassation generally considers the applicable law to be that of the spouses' first conjugal household after they got married.
If the spouses got married after 1 September 1992, the provisions of the Hague Convention of 14 March 1978 on matrimonial regimes applies. Article 3 of this convention determines the law that the spouses may choose when they get married and Article 4 determines the law that applies if the spouses do not make an express choice. This change may be voluntary or automatic. This must be taken into account at the time the matrimonial property regime is liquidated and, in some cases, there may be several successive liquidations of matrimonial property regimes for one marriage.
For spouses married on or after 29 January 2019, Council Regulation No. 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes sets the applicable conflict of laws rules. This Regulation allows spouses to choose the law that will apply to their matrimonial property regime and also establishes as a principle that the law of the place of the spouses' habitual residence applies if they do not make another choice.
The Regulation provides for the option to voluntarily change the law that applies to the matrimonial property regime during the marriage, but it does not provide for automatic change.
The Regulation also provides for jurisdictional rules regarding liquidation of the matrimonial property regime.
Different types of unions exist, each of which leads to different rights and duties for the individuals in the couple. In an international context, we need to make sure that the union will be recognized both in France and abroad.
Children may be affected by various matters that fall under international family law (habitual residence on the territory of a foreign country, movement across a border, etc.)
To protect a vulnerable adult, it may be necessary to resolve issues of private international law, such as jurisdiction, so that a protective order may be issued and recognized.
Estates are transferred after a death or on the basis of an estate plan. In an international context, this area of law has special characteristics due to the diversity of laws and taxes that may apply.
In an international context, the question of what consequences a foreign judgment will have in France often arises.