The recognition and the exequatur in France of the foreign judgments of divorce
The judgment of divorce pronounced abroad is a constitutive judgment which, as a decision concerning the state and the capacity of the people, has in theory in France the full effect without a procedure of exequatur.
This rule is subjected to two reserves and an exequatur is necessary:
- in the event of litigation between the parties,
- and when the judgment of foreign divorce leads to acts of material execution on the goods or coercion on the people.
The procedure of exequatur is thus necessary if one of the spouses contests the effects of the judgment in France, or wants to execute this judgment in France against the other spouse (alimony, seizures of goods or money, visits and lodging of the children).
It is frequent that a party disputes, before the French tribunals, the full effect of a judgment of divorce pronounced abroad.
There are often litigations:
- when a judgment of divorce pronounced abroad is opposed by a party to a petition for divorce in France,
- when a judgment of divorce is opposed by a party in defense to a request of nullity of the second marriage for bigamy.
The conditions of the exequatur in France of a judgment of divorce depend on the country in which this one was delivered.
Recognition and execution in France of the judgments of divorce pronounced in the Member States of the European Union
In European law, Regulation (EC) n° 2201/2003 of the Council relating to competence, recognition and execution of the decisions out of matrimonial matter and as regards parental responsibility poses the principle according to which the judgments in these matters delivered in one Member State are recognized in the other Member States without any particular formalities, and no procedures are required for the updating of civil status documents.
However, a decision out of matrimonial matter or of parental responsibility cannot be recognized for certain reasons but it can in no case to be revised.
No special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.
A judgment relating to a divorce, legal separation or marriage annulment shall not be recognized:
- (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
- (b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defense unless it is determined that the respondent has accepted the judgment unequivocally;
- (c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or;
- (d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
A judgment relating to parental responsibility shall not be recognized:
- (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
- (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
- (c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense unless it is determined that such person has accepted the judgment unequivocally;
- (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
- (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
- (f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought;
- (g) if the procedure laid down in Article 56 of the Regulation (placement of a child in another Member State) has not been complied with.
The exequatur in France of the judgments of divorce pronounced in the States non-member of the European Union
The conditions of the exequatur of the foreign judgment can be subjected to an agreement of legal cooperation signed between France and the State in which the judgment of divorce was delivered.
If there is no bilateral agreement between France and a State, the exequatur of the judgment of divorce is pronounced pursuant to French case law, lastly in the Cornelissen case.
The exequatur of the foreign judgments of divorce is a matter that gives very many decisions of the French tribunals, in particular by the Cour de cassation.
We invite you to refer to our world map of the exequatur, from which many French legal decisions, relative with the exequatur of judgments of divorce pronounced abroad, are analyzed.
Recently, the Cour de cassation delivered on July 8th, 2010 a case refusing the authority of the final decision of a Moroccan judgment of divorce since the wife had not been legally summoned within the meaning of the legal Convention between France and Morocco of October 5th, 1957 relative to the exequatur, so that the Moroccan judgment of divorce could not be recognized in France.
Unilateral repudiation also gives certain number of judicial decisions in France.
The Cour de cassation ruled on this point in a November 4th, 2009 case concerning a divorce pronounced in Morocco and in the following terms:
“The decision of a foreign tribunal noting a unilateral repudiation by the husband without giving any legal effect to the possible opposition of the woman and depriving the competent authority of any capacity other than to arrange their financial consequences of this rupture of matrimonial bond, is contrary with the principle of equality of the spouses at the time of dissolution of the marriage stated by article 5 of the protocol of November 22nd, 1984 n° VII, additional with the European Convention of the rights of man, that France is committed to guarantee to any person concerned with her jurisdiction, and thus with the international public order; the case retains that divorce of husbands X… /Y… is the " divorce under judicial control " governed by the articles 78 to 93 of the Moroccan code of family, published by decree of February 3rd, 2004; then that the husband being able to obtain the divorce without the wife cannot oppose to the request, the intervention of the judge, taking into consideration article 83 and 84 of the code above mentioned, being limited to the consequences of separation when the attempt of conciliation failed; although the wife cannot seize the court of one similar request unless if she was authorized there by the husband; finally that both spouses live on the French territory; that the court of appeals, by a justified decision, analyzing the dispositions relative with the form of divorce noted by the foreign tribunal, precisely deduced from it that the judgment from the Tribunal of first degree of Khemisset of October 4th, 2007 could not be recognized in France”.