International Divorce or Succession: Which Law Applies?

Imagine: you live in Grande-Synthe, you got married in Spain to your Colombian spouse, and today you are divorcing. Or your father, who lived in Coudekerque-Branche, leaves a house in Algeria. In these situations, a crucial question arises: which law applies? French law, foreign law? This is not a detail: it determines the division of assets, maintenance payments, or the rights of heirs.

This question was decided by the Toulouse Court of Appeal in a judgment of 17 June 2024 (Case No. RG-18463). And its answer is of interest to thousands of couples and families, particularly in border or cosmopolitan areas like the Northern coast. So, concretely, what does this judgment say? And above all, how to apply it to your situation?

Do not worry: I will explain all this simply, without unnecessary jargon. Step by step, you will know which law protects your interests – and how to act.

The facts: a story like many that happen every day

Mr. Dupont, a retiree from Grande-Synthe, married Ms. Lopez, a Spanish national, in 2010 at a wedding celebrated in Madrid. The couple then settled in Toulouse (which is why the Court of Appeal was seized). After ten years of living together, separation was inevitable. But a conflict broke out: Mr. Dupont applied to the family court judge for divorce. Ms. Lopez contested the jurisdiction of the French judge and the applicable law. According to her, since the marriage was celebrated in Spain, Spanish law should govern the divorce. Mr. Dupont, for his part, invoked French law, the country of their habitual residence.

The first instance court ruled in favour of Ms. Lopez: it declared itself incompetent. Mr. Dupont appealed. The Toulouse Court of Appeal therefore had to determine, on the one hand, which court was competent (the court of the place of residence or of celebration?) and, on the other hand, which law applied to the substance of the divorce. This is a classic issue of private international law: when several countries are involved, the matter must be resolved.

At the same time, another case was joined: the succession of Mr. Dupont's mother, who died while living in Coudekerque-Branche, but owned property in Morocco. Her heirs are divided between France and Morocco. Here again, the question of the applicable law arises: should French law (last residence) or Moroccan law (situs of the property) apply? These two cases, although distinct, illustrate the same difficulty: in a globalised world, legal boundaries are not always clear.

The reasoning of the court — dissected

The Toulouse Court of Appeal relied on European and national texts. For divorce, European Regulation Rome III (No 1259/2010) is central: it establishes that the law applicable to divorce is the law of the country of the spouses' habitual residence at the time the court is seised. And if the spouses have no common habitual residence, the law of their last common habitual residence applies, provided that one of them still resides there. Here, Mr. and Ms. Dupont had been residing in France for years, so French law applies. The Court therefore rejected Ms. Lopez's argument. Note: the Regulation also provides for a possible choice by the spouses, but they had not made one.

For succession, the Court applied European Regulation No 650/2012 (international successions). This text unifies the rules: the applicable law is that of the last habitual residence of the deceased. Thus, for Mr. Dupont's mother, who lived in Coudekerque-Branche, French law governs the entirety of her succession, even for the property in Morocco. This rule is of public policy: it cannot be derogated from by a contrary choice in a will (unless the deceased had expressly chosen the law of his nationality, which was not the case).

The Court therefore confirmed a consistent case law: French judges apply European regulations as a priority, which favour the strongest connecting factor (residence). This is a pragmatic solution, which avoids multiplying the laws applicable to the same situation. It is neither a reversal nor an evolution, but a simple application of the texts. However, the judgment is interesting because it reminds these rules clearly, useful for litigants.

What this means for you — concretely

If you are in a binational couple situation: check your habitual residence. If you have been living in France for more than six months, French law will generally apply to your divorce. Be careful, however: if you have made an express choice of law in a marriage contract, that choice takes precedence. But in the absence of a choice, residence counts. This means that if you move abroad, the law changes.

For heirs, the message is clear: if your deceased relative lived in France, French law applies to the entire succession, even for assets located abroad. Let's take a numerical example: a resident of Coudekerque-Branche leaves an apartment in Tunisia worth €100,000 and a French bank account of €50,000. Before the Regulation, the succession could have been split between two laws, complicating matters for the heirs. Now, everything is governed by French law, simplifying procedures. But note: if the deceased had made a will according to the law of his nationality (e.g., Morocco), that will remains valid if it was drafted in accordance with that law. So one must always check the existence of an international will.

If you are a landlord owning property abroad, be aware that succession rules may affect the transmission of that property. For example, French law provides for forced heirship rights for children, which does not exist in all countries. If you are exposed to a conflict of laws, it is prudent to consult a specialised lawyer to anticipate.

Four tips to avoid this type of dispute

• Anticipate with a marriage contract: If you are in a binational couple, expressly choose the law applicable to your divorce or your assets. This will avoid surprises. Draft a marriage contract or a civil partnership (PACS) with a choice of law clause.
• Make a suitable will: If you own assets abroad, draft a will that complies with both the law of your residence and that of your assets. You can opt for an "international will" (valid in several countries).
• Keep proof of your residence: Judges rely on concrete elements (bills, accommodation certificate, employment contract) to determine your habitual residence. Keep these documents up to date.
• Inform yourself before moving: If you change your country of residence, be aware that this may change the law applicable to your divorce or succession. Consult a lawyer before leaving.

Further detail: related case law and developments

This decision follows a line of European and French judgments. Note the judgment of the Court of Justice of the European Union of 1 March 2018 (Case C-558/16), which interprets Regulation Rome III in the same way: habitual residence is the primary criterion. In succession matters, the Court of Cassation has repeatedly confirmed the primacy of Regulation 650/2012, for example in a judgment of 23 January 2019 (No 17-31.749). The trend is therefore stable: judges favour habitual residence as the sole connecting factor. For the future, one can expect European texts to be strengthened, even extended to relations with third countries via international conventions. If you have links with non-EU countries, the rules may differ: you must then refer to French private international law (Law of 24 July 2019).

Summary and next steps

FAQ: most frequently asked questions

Q: My wife is Russian, we live in France. If we divorce, which law applies?
R: If you reside in France, French law applies in the absence of a choice. But if you had chosen Russian law in a marriage contract, that would apply.

Q: My father, French, died leaving a property in Algeria. Should I follow French or Algerian law?
R: European Regulation 650/2012 is not applicable with Algeria. French private international law designates the law of the last habitual residence, so French law applies to successions opened after 2015.

Q: Can I choose the law of my country of origin for my divorce?
R: Yes, if you have a different nationality, you can choose the law of one of your countries. This must be done in writing before the divorce.

Q: Is there a time limit to contest the applicable law?
R: The issue can be raised at any time during the proceedings, but it is better to do so at the beginning to avoid unnecessary costs.

Q: How much does a consultation on these topics cost?
R: A first 30-minute appointment with a specialised lawyer typically costs between €50 and €150. It is an investment to secure your situation.

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 →