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International divorces often give rise to complex disputes in which parents fight to obtain the exercise of parental authority over their children. Determining the jurisdiction of the national courts called upon to rule is therefore at the heart of these disputes, with each party trying to obtain a favorable decision from “their judge”. The judgment of July 4, 2012 thus illustrates the attempts made to achieve such an objective on the basis of the plaintiff’s French nationality.
The case concerns a Franco-American couple who had married and settled in the United States. A first child was born of this union. Pregnant with her second child, the wife, of French nationality, had come to France with her sick father in November 2007. Her husband, American, had granted an authorization to leave the territory to their first child who accompanied his mother to France . However, the wife never returned to the United States. Less than a week after giving birth, in Lyon, and four days after the expiration of the exit permit, she had filed a divorce petition with the family affairs judge of the Lyon tribunal de grande instance. Article 14 of the Civil Code, which is subsidiary to the ordinary rules of international jurisdiction, offers a privilege to the applicant of French nationality. The latter can bring before the French courts any “foreigner, even non-resident in France, […] for the performance of the obligations by him contracted in France with a Frenchman” or “for the obligations by him contracted in a foreign country towards French “. On this occasion, the Court of Cassation implicitly recalls its case law according to which “no provision of French law requires the French judge seized of the divorce to rule on matters of parental authority.
Also, and in the event that the French divorce judge would be competent to hear the action brought by the wife, he would not necessarily be able to rule on the exercise of parental authority. It is true that the French courts do not have jurisdiction when the claimant fraudulently creates the conditions for the application of Article 14 to give them jurisdiction – particularly in the case of a voluntary assignment of a claim to a person of French nationality intended to establish the jurisdiction of the French courts. In the present case, however, the situation of the wife was different.
The wife had not been guilty of any fraud intended to artificially establish the jurisdiction of the French courts since she was only invoking the privilege attached to her nationality. It was only because of his French nationality – and not because he had settled in France – that the French courts had jurisdiction on the basis of article 14 of the civil code .
Gregory Damy Divorce lawyer Nice
