International Divorce: Which Court Has Jurisdiction? The Douai Judgment

Imagine: you live in Sainte-Foy-lès-Lyon, your spouse works in Geneva and married life comes to an abrupt halt. Where do you start divorce proceedings? In France, where you live, or abroad, where your spouse resides? This question, which may seem administrative, can stall your situation for months. A recent decision of the Douai Court of Appeal clarifies the matter. It specifies the criteria for determining which court has jurisdiction in an international divorce, and your rights if you are the spouse remaining in France.

In this case, a Franco-Belgian couple dispute the jurisdiction of French and Belgian courts. The Court of Appeal rules in favour of the husband remaining in Caluire-et-Cuire: the judge of the habitual residence of one of the spouses may be seised. This is not trivial: it means you are not forced to litigate abroad if you live in France.

Let us examine this decision, its reasoning, and above all what it changes for you, whether you are in the middle of divorce proceedings or preparing your separation.

The Facts: A Story That Happens Every Day

Mr. R., owner of a flat in Sainte-Foy-lès-Lyon, marries Mrs. B., a Belgian national, in Lyon in 2010. The couple first settles in Caluire-et-Cuire, a municipality bordering Lyon, then, in 2018, Mrs. B. obtains a job in Brussels. She moves to live alone in Belgium while Mr. R. stays in their Caluire home. Very quickly, distance strains their marriage. In 2023, Mr. R. files a divorce petition before the Lyon Judicial Court. He invokes his habitual residence in France, since his marital home has always been in the Rhône.

Mrs. B. immediately contests the jurisdiction of the French judge. She claims that the couple's habitual residence since 2018 is in Belgium, because she works and lives there, and Mr. R. could visit her. According to her, the Brussels court should be seised, under the European Regulation Brussels II ter (the text governing jurisdiction in matrimonial matters within the European Union). She also points out that she initiated proceedings in Belgium a few days later.

The Lyon court declares itself incompetent, following Mrs. B.'s argument. Mr. R. appeals. The Douai Court of Appeal (because conflicts of jurisdiction between courts of different districts can be decided by certain designated Courts of Appeal) overturns the judgment. It holds that Mr. R.'s habitual residence is in France, that he never moved abroad, and that Mrs. B.'s sole professional residence in Belgium is not enough to shift the centre of family life. Consequently, the French judge has jurisdiction.

The Reasoning of the Court — Analysed

To decide, the judges of the Douai Court of Appeal relied on Article 3 of Regulation (EU) 2019/1111 (known as "Brussels II ter"), which lists the criteria for jurisdiction in divorce matters. This text specifies that the competent court is, at the choice of the applicant, that of the Member State in whose territory is situated: the habitual residence of the spouses, the last habitual residence of the spouses if one of them still resides there, the habitual residence of the respondent, or, failing that, the common nationality. The court verified each of these criteria.

First, it noted that the spouses' habitual residence before separation was in France: they lived together in Caluire-et-Cuire. Next, it examined whether Mrs. B. could invoke her own residence in Belgium. The concept of "habitual residence" is a factual concept, assessed in light of the duration, stability and integration of the person in a State. Living alone abroad for professional reasons does not automatically transfer the couple's habitual residence, especially when the spouse remains in the former family home. The court considered that the centre of family interests remained in France, because Mr. R. lived there permanently and Mrs. B. had not severed any administrative ties (such as her health insurance or bank account) with France.

This reasoning confirms consistent case law of the Court of Justice of the European Union (CJEU), which favours a concrete and individualised approach. The Douai decision is therefore not a reversal, but a classic application of the text. However, it has significant practical implications: it prevents a spouse from "choosing" a foreign court to slow down proceedings or disadvantage his/her spouse. In this case, Mrs. B. was trying to have the case judged in Belgium, where Mr. R. would have had to plead in another language and with a local lawyer. The court restored balance.

What This Changes for You — Concretely

If you are the spouse remaining in France after a separation with a spouse who has gone abroad, this judgment gives you a solid argument to seise the French judge. Let's take a concrete example: you live in Caluire-et-Cuire, your spouse has worked in Geneva for two years. You wish to divorce. Without this case law, you might be tempted to go to plead in Switzerland, with lawyer fees three times higher (fees in Switzerland are often €400 to €600 per hour, compared to €150 to €300 in France). You can now seise the Lyon court, proving that your habitual residence is in France – through your bills, tenancy agreement, professional activity.

For couples who are not yet separated but are considering an international divorce, anticipate these issues. Keep all documents that demonstrate your ties to France: employment contract, tax assessment, children's school certificates. If you own a property in Sainte-Foy-lès-Lyon, this further strengthens your territorial link. Conversely, if you have left France for a long time and cannot justify a habitual residence, it will be more difficult to contest the jurisdiction of the foreign court.

Another concrete point: the regulation also allows seising the court of common nationality. If you are both French, the French judge will have jurisdiction even if you live abroad. But note, this criterion is not always the most protective for the spouse who wants to divorce quickly. The common nationality can be invoked by one spouse without the other's consent.

Finally, this decision reminds that the concept of habitual residence is not to be confused with tax domicile or place of work. A spouse who works abroad but returns every weekend to France retains his/her habitual residence in France. Judges look at the reality of daily life, not just formalities.

Four Tips to Avoid This Type of Dispute

• Keep evidence of your continuous residence in France: leases, energy bills, bank statements, tax assessments. These documents will be useful if your spouse contests French jurisdiction.
• Before seising the court, check whether your spouse has already initiated proceedings abroad: the first seised court has priority (principle of lis pendens). If your spouse beats you to it, you will have to plead where he/she seised, unless you demonstrate that France is better placed.
• Consult a lawyer specialised in international family law as soon as tensions arise: he/she will help you choose the most favourable court (in terms of applicable law, maintenance payments, child custody).
• Do not neglect the children aspect: jurisdiction for parental issues (parental responsibility, residence) may differ from that for divorce. The best interests of the child may justify the French court having jurisdiction even if the divorce is adjudicated abroad.

Further Reading: Related Case Law and Developments

The Douai Court of Appeal is not the first to rule on this subject. A ruling of the Court of Cassation dated 12 July 2023 (No. 21-50.047) had already recalled that a spouse's habitual residence is not presumed and must be established by concrete elements. In 2022, the Court of Justice of the European Union (Case C-501/20, MPA v. LC) specified that the spouses' habitual residence is where they have established the centre of their family life, even if one of them works abroad. The trend is therefore clear: judges favour the place of actual residence, not the place of work or nationality.

This development is favourable to spouses remaining in their country. It limits "divorce forum shopping", where a spouse chooses a foreign court to obtain more advantageous conditions (shorter delays, more favourable laws). With Regulation Brussels II ter, applicable since 1 August 2022, the rules are uniform within the EU. The next step may be harmonisation of criteria with third States, through bilateral conventions.

What You Absolutely Must Remember

Here are the most frequent questions I receive and their concrete answers:

Q: Can I divorce in France if my spouse lives abroad?
A: Yes, if you are habitually resident in France (more than 6 months per year in a stable manner). You can seise the court of your domicile.

Q: What if my spouse has already seised a court abroad?
A: The court first seised is competent, unless you prove that the French judge was already seised or that the foreign judge is not competent according to the criteria. Act quickly.

Q: What is the difference between habitual residence and domicile?
A: Domicile is your principal home, often linked to your tax declaration. Habitual residence is the place where you actually live, with stability. Judges look at reality.

Q: Are the rules the same for child custody?
A: No. For children, jurisdiction is determined by their habitual residence. If the children live in France with you, the French judge has jurisdiction for parental decisions, even if the divorce takes place elsewhere.

Q: Does this decision apply outside the European Union?
A: Jurisdiction rules are different with non-EU States (Hague Conventions, national law). But the principles of habitual residence often remain decisive.

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