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Jonathon Wise Polier
Member of the Bars of New York State and Paris (France)
4 rue de Marignan
75008 Paris

Telephone: (33) 1 47 23 41 51
Fax:  (33) 1 47 23 37 93

E-Mail: j-polier@paris-law.com
http://www.paris-law.com

Non-French citizen contemplating an eventual divorce proceeding in France will need to understand how such matters are treated in France. The brief summer noted below may provide a useful introduction.

Jurisdiction of French Courts

A Family Court Judge (Juge aux affaires familiales) at the local French Tribunal de Grande Instance has jurisdiction over a divorce proceeding and the relief to be granted if:

• the family lives within its territorial jurisdiction, or 
• the minor children reside in such territorial jurisdiction, if the husband and wife live separately, or
• otherwise, in the territorial jurisdiction where the respondent spouse resides, or 
• in the event of a joint instituted proceeding, in the territorial jurisdiction of either spouse, if jointly designated. (See Article 1070 of the Code of Civil Procedure or "CPC") 

Such requirements are designed to avoid forum shopping among French husbands and wives which could otherwise unduly disadvantage one of the spouses. These restrictions are also current in the United States where most states require the plaintiff party to be a resident of the state for 6 months or a year prior to the commencement of an action in divorce.

However, if one spouse is French and the other non-French, the French tribunal will accept jurisdiction in France on the basis of Article 14 of the French Civil Code, a scenario too complex to be examined in detail in this brief expose.

It should also be noted that, if an American spouse left the family residence in France and returned to the United States with the intention of bring an action in divorce once the 6 months or one year residency requirement had been met, the spouse remaining in France could would have time to bring a valid action in France thereby giving the French tribunal exclusive jurisdiction over the divorce proceedings.

Commencement of Action to Reside Separately 

 While the  four French grounds on which a divorce action may be brought are discussed below, there exists an optional intermediate step which is often used to try to render the divorce process less traumatic and less expensive. 

Pursuant to Article 251 of the Civil Code, either spouse can bring an initial action to obtain the authorization to live separately and to obtain a temporary order relating to the exclusive use of the family residence, other financial matter and child custody.  This is done by  filing a petition with the judge, without stating the grounds for divorce or actually asking that a divorce be approved.  

As the initial hearing will not generally occur for three months after the filing of the Article 251 petition,  the spouses and their respective attorneys will have time to try to draft a written agreement  resolving all the financial and child custody issues. 

If during such period an agreement is reached, at the initial hearing, the judge can (if the parties agree), (a) issue an order granting the divorce by mutual consent and (b) approved the terms of the written agreement, if the judge deems its terms to be fair.

If during such period no agreement is reached, the judge will normally (a) issue a temporary order authorize the spouses to live separately and (b) issue a temporary order with respect to the exclusive use of the family residence, other financial matters and child custody. 

Upon receipt of that temporary order, either spouse can initiate an action for divorce, assuming that such action meets the relevant requirement, requirements discussed below.

Basis on which to Institute Divorce Proceedings

There are currently four French forms of divorce proceedings and it is important to make the right choice at the beginning. The law may shortly be revised and modernized. But, for the moment, the four forms of divorce proceedings are the following:

• Joint divorce request ("divorce sur demande conjointe des époux") ( Civil Code Articles 230 to 232), 
  
• Divorce request on the basis of breach of the communal life during a period of 2 or more years ( Civil Code Articles 237 to 238), 
  
• Divorce for fault (CPC Article 1128 and Civil Code Articles 242 to 246), and 
   
• Divorce by request of one spouse and acceptance by the other spouse (CPC Articles 1129 et seq. and Civil Code Articles 233 to 234).

Reconciliation Proceeding

The Magistrate hearing a divorce proceeding has a statutory duty to facilitate reconciliation. (Civil Code Article 251 and CPC Articles 1074, 1108-1110). In practicality, this means that the Judge will on the same day first meet one at a time with each spouse in chambers without the presence of legal counsel. Immediately thereafter, the spouses and their respective legal counsels (if any) will meet with the Judge who will again ask each of the parties if they wish to reconcile. Assuming that  both of the parties are not willing to reconcile, that phase is ends and the Judge will  render a written decision containing the finding that reconciliation is not possible (CPC Article 1111).  Naturally, if the situation is less clear, there can be further hearings on the issue of reconciliation.

Additional Information

This informational note will be expanded in the future to address at least the following situations and/or issues: 

• the advantages, disadvantages and limitations of the four forms of divorce proceedings, 
• timing and frustrating delays, 
• temporary and final child support, 
• removal of the children from France prior to a final decision of the Tribunal or a Court of Appeals, 
• lump sum compensation to an aggrieved ex-spouse, 
• allocation of marital assets and the role of not only legal counsel but also a French "Notarie", 
• role of the neutral "expert" appointed by the Judge and the experts report to the Judge.
• special discovery problems when marital assets may include American Social Security and other American retirement  benefits and assets, 
• other issues of proof given the fact that American-type pre-trial discovery procedures are not available in France,  and
• other issues of proof in a legal system without oral testimony and cross examination.