Applicable Laws to your Divorce

Different EU Regulations rule the laws applicable to each aspect of your divorce (ground for divorce, liquidation of matrimonial regime, spousal support, compensatory benefit, parental responsibility, alimony, etc.).

Consequently French Courts will not necessarily apply French Law. For instance and depending on your situation, you could have a law applicable to the winding up of the matrimonial regime, another one applicable to spousal support and a third one to parental responsibility.

According to French divorce proceedings, first, the Family Judge rules on interim measures.

Recently, French Supreme Court has decided that French Court will apply French law to interim measures.

As part of these interim measures, the Judge could grant monthly payment as part of spousal support to one of the spouse. Its aim is to ensure the same lifestyle to the spouse after the couple’s separation. It does not take into account the length of marriage.

The interim measures granted are effective throughout the entire procedure and until the divorce is finalised.

Please note that, depending on the complexity of the divorce and the relations between the spouses, this procedure can last several years.  That means that a spouse would receive a monthly payment during these years, as part of a spousal support and this amount will not be deducted from the amount allocated for compensatory benefit.

Once the conciliation hearing has taken place, the parties will be given leave to lodge a formal petition for divorce outlining a ground of divorce and dealing with the divorce’s consequences for the spouses (compensatory benefit, eventually winding up of the matrimonial regime) and their children (parental responsibility, alimony).

The division of assets is apart from the compensatory benefit and if not agreed will be dealt once the divorce is decreed.

The law applicable to divorce is ruled by Council Regulation n° 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (hereafter designated as Rome III Regulation).

Article 5 of Rome III Regulation, enables spouses to agree in advance which law would apply in the event of their divorce or legal separation. Please be aware that spouses may agree to designate the law applicable, but the choices are limited to certain law.

If the spouses have not agreed, French Court will apply the law of the State:

• where the spouses are habitually resident at the time the court is seized; or, failing that
• where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that
• of which both spouses are nationals at the time the court is seized; or, failing that
• where the court is seized (lex fori).

As mentioned previously, the rules applying to divorce are different from:

• winding up of the matrimonial regime ruled by Hague Convention on the Law Applicable to Matrimonial Property Regimes and soon by Council Regulation (EU) 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 ;
• compensatory benefit ruled by Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations;
• parental responsibility ruled by Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Due to the complexity of those rules, it is paramount that you seek legal advice from an expert in Family International Law in case your divorce has an international aspect.