International Divorce: Jurisdiction of the French Judge - Aix 2024 Ruling

Imagine: you live in Saint-Pierre-des-Corps, you are married to an Italian national, and after years of living together, separation is inevitable. You want to divorce in France, but your spouse contests the jurisdiction of the French judge. Who decides? The answer is not always obvious.

This question is asked by hundreds of binational couples every year. International divorce raises a conflict of jurisdictions (i.e., the choice between the courts of several countries) which can paralyse the procedure for months. The ruling handed down by the Aix-en-Provence Court of Appeal on 25 March 2024 (Case No. RG-27884) brings major clarifications.

But how do you know whether the French judge or the foreign judge should decide? The decision rests on precise criteria which we will analyse. And if you recognise yourself in this scenario, know that a quick analysis of your situation can save you a long judicial process.

The facts: a story like many others

Mr and Mrs D., a Franco-German couple, married in Aix-en-Provence in 2015. They have two children born in France. After a professional relocation, the family moves to Munich in 2020. But life across the Rhine does not suit Mrs D., who returns to live in Aix in 2023 with the children. She files a divorce petition (request for divorce) before the family court judge of Aix-en-Provence.

Mr D. contests: according to him, the German judge is competent, because the habitual residence (main and stable place of life) of the family was in Germany at the time of the request. The Aix court declares itself competent, considering that Mrs D. had established her habitual residence in France before the application. Mr D. appeals (contests the decision) before the Aix-en-Provence Court of Appeal.

The debate concerns the interpretation of European Regulation Brussels II bis (Regulation (EC) No 2201/2003), which sets out the rules of jurisdiction in matrimonial matters. The court had to determine whether the habitual residence of the petitioner spouse (Mrs D.) was in France at the time of filing, or whether the centre of family interests remained in Germany.

The reasoning of the court — analysed

The judges of the Court of Appeal confirmed the jurisdiction of the French judge. Their reasoning is based on Article 3 of Regulation Brussels II bis, which provides several alternative criteria: the habitual residence of the spouses, of the petitioner, or common nationality.

In this case, the court considered that Mrs D. had transferred her habitual residence to France six months before the application, due to her lasting return with the children, the enrolment of the children in school in Aix, and the lack of prospect of returning to Germany. Mr D., although residing in Munich, had not shown that family life continued there.

This is not a reversal of case law, but a confirmation of the tendency of French courts to favour the place of effective residence of the petitioner, especially when he or she is a parent of minor children. The court recalls that each situation must be examined in concreto (on a case-by-case basis). Mr D.'s arguments — based on the length of life in Germany and his work — were not enough to counter the evidence of a stable establishment in France.

Who has never been faced with a situation where two administrations pass the buck? Here, the court decided clearly: the French judge is competent as soon as the petitioner proves his or her habitual residence in France, even if the spouse lives abroad.

What this changes for you — concretely

If you are a petitioner spouse living in France: you can seize the French judge if you demonstrate that your habitual residence has been in France for at least six months (or one year if you are a non-national). Concrete example: in La Riche, a Franco-Belgian couple: the wife, separated from her Belgian husband, moves in with her mother in La Riche. After eight months, she can petition for divorce in Tours. The ruling confirms that she is admissible, even if the husband still lives in Belgium.

If you are the respondent spouse: you can contest jurisdiction, but you will have to prove that the petitioner has not transferred his or her residence in a stable manner. For example, a mere temporary stay is not sufficient. The burden of proof is on you.

For parents: jurisdiction over parental authority (custody, access rights) generally follows jurisdiction over the divorce. But if the children habitually reside abroad, the French judge may refuse to rule on this aspect. In the ruling, the children were schooled in France, which reinforced French jurisdiction.

Time limit to remember: if you have just settled in France, wait six months before filing your petition, to be certain of eligibility. Costs: solicitor's fees for a standard procedure can range from £1,500 to £4,000, but if a conflict of jurisdiction is added, they may double.

Four tips to avoid this type of dispute

• Anticipate the transfer of residence: if you plan to leave abroad to divorce in France, build a solid dossier: electoral registration, rental contract or property purchase, schooling of children, subscription to public services. The earlier you create ties, the better.
• Consult a solicitor as soon as separation occurs: do not rely on advice from a relative. International law is complex. A specialist solicitor can assess your situation and advise you on which court to seize.
• Avoid seising two courts at the same time: the risk of lis pendens (two parallel proceedings) is real. If your spouse beats you to it, you could be ordered to pay additional costs. Opt for prompt action or an agreement on jurisdiction.
• Think about the Hague Convention: for divorces outside the European Union, other rules apply. For example, for an Algerian spouse, the criteria of jurisdiction are provided by French law and bilateral conventions. Do not assume that Brussels II bis applies.

Further reading: related case law and developments

This ruling is in line with consistent case law. The Court of Cassation, in a ruling of 12 September 2019 (No. 18-20.244), had already held that the habitual residence of the petitioner must be assessed in the light of all the circumstances of fact. More recently, the CJEU (Court of Justice of the European Union) specified in the case S. v R. (2021) that habitual residence cannot be changed by a mere change of domicile; it requires lasting integration.

The trend of French courts is therefore to protect the petitioner spouse, especially if he or she is a parent. This means that if you are in a position of weakness (domestic violence, abrupt departure), you can count on a favourable interpretation. Nevertheless, Regulation Brussels II bis is to be replaced by Brussels II ter (applicable from 2025), which further reinforces the jurisdiction of the child's place of residence. Prepare for this development.

On the other hand, a contradictory decision of the Versailles Court of Appeal (2022) had retained the jurisdiction of the foreign judge in a similar case, due to the lack of sufficient connection with France. This shows that each case is unique: nothing is automatic.

In practice: what to do

FAQ:

1. Which court is competent for an international divorce if one of the spouses lives in France? The French judge is competent if the petitioner spouse habitually resides in France for at least six months (or one year for non-nationals). If both live in France, it is automatic.
2. How is the habitual residence of the child determined? Judges look at the place of schooling, medical follow-up, daily living environment, duration of stay. A recent return may not be sufficient.
3. Can I divorce in France if my spouse lives abroad and refuses? Yes, if you prove your habitual residence in France. The spouse will be served (summoned) abroad according to the rules of international service.
4. What are the time limits for acting after returning to France? Ideally wait six months, but you can act sooner if you demonstrate immediate and lasting settlement (e.g., property purchase, stable job).
5. What if both courts declare themselves competent? The regulation decides by prioritising the court first seised. If you are seised first, you can request the foreign judge to decline jurisdiction via a plea of lis pendens.

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Perucca (£45) can save you months of procedure — and often much more. Book an appointment →