With more than 273,000 marriages celebrated in France in 2022, around 14% of which involved at least one spouse of foreign nationality, the country reflects a rapidly internationalising society. This increase in unions between French and foreign citizens naturally goes hand in hand with an increase in divorces involving international couples.
However, these separations are often more complex, due to the diversity of applicable laws and interactions between the legal systems of the different countries involved. Consequently, understanding the divorce procedures for international couples has become increasingly important. This comprehensive guide will walk you through the entire process of obtaining a divorce in France as a foreigner.
Legal Requirements for Foreign Divorce in France
In French law, there are no specific rules for international divorces, which means that disputes involving a foreign element fall under private international law. The private international law organises the applicable regime to divorces through European texts.
- Brussels II ter Regulation : it sets out the rules of international jurisdiction in matters of divorce.
- Rome III Regulation : it sets out the rules of choice of law in matters of divorce.
Eligibility Criteria
- At least one spouse must be residing in France or both of them must have the French nationality
- Marriage must be legally recognized under French law
- The divorce agreement must be filed with a notary and certified by the president of the court or his delegate in the competent jurisdiction (only for divorce by mutual consent) (Article 2.2.3 of Brussels II ter Régulation)
Jurisdiction Considerations
The Brussels II ter Regulation plays a crucial role in determining which courts are competent to handle divorce proceedings involving international couples within the European Union, including in France. It applies to the four types of divorce provided for by French law :
- Divorce by mutual consent : both spouses agree to the divorce and its terms.
- Divorce for fault : one spouse is held responsible for the end of the marriage.
- Divorce for permanent alteration of the marital bond : the marital relationship has irretrievably broken down without fault.
- Divorce for acceptance of the principle of separation : both parties agree to divorce but not on the terms.
The Brussels II ter Regulation defines jurisdiction for divorce cases involving international couples. French courts are competent if any of these criteria are met:
- Habitual residence of the spouses: Where the couple regularly lives together.
- Last habitual residence: If one spouse moves abroad while the other stays in France.
- Defendant’s habitual residence: Ensures fairness by connecting to the defendant’s location.
- Habitual residence of either spouse (joint applications): Supports mutual consent divorces.
- Applicant’s habitual residence: Requires six months of residency for French nationals.
- Common nationality of spouses: Ensures access to French courts for French citizens.
Law Considerations
In international divorce, it is essential to determine the law applicable to divorce, as it directly influences the procedure and the rights of the spouses.
1. The right of spouses to choose the applicable law
Under Article 5 of the Rome III Regulation, spouses have the right to choose the law applicable to their divorce. This choice allows for some flexibility, particularly in cross-border situations.
Conditions for the choice of law :
- The time : At the latest at the time of referral to the competent court.
- The form : The selection of the applicable law must be made by a written agreement signed by both spouses
- The content : Spouses have to choose a law between the ones provided by the Regulation
- The law of the State of their common habitual residence on the day of the conclusion of the agreement.
- The law of the State of their last common habitual residence, provided that one of the spouses still resides there on the day of the agreement.
- The law of the State of nationality of one of the spouses on the day of the agreement.
- The law of the state of the forum (the country where the court is seized).
2. Lack of choice
Sometimes, spouses cannot agree on the applicable law for their divorce or fail to formalize their choice. In this case, Article 8 of Rome III Regulation introduces a cascade system of conflict-of-laws rules. This system is designed to establish the applicable law in an objective and predictable manner, following a hierarchical order of criteria :
- The law of the common habitual residence of the spouses
- The law of the last common residence of the spouses
- The law of the common nationality of the spouses
- The law of the State of the court (the country of the seised court)
Step-by-Step Divorce Process
1. Initial Filing Procedures
In France, articles L.213 and L.213-4 of the French Code of Judicial Organization (COJ) and article 1070 of the French Civil Code assign the family court judge of the spouses’ place of residence to oversee divorce proceedings. The type of divorce procedure determines the method of initiation.
Divorce by mutual judicial consent :
The spouses must submit a joint petition accompanied by a divorce settlement agreement. This process is governed by Articles 1089 to 1091 of the French Civil Procedure Code :
- Submission of a joint petition
- Valid identification documents : It includes the names of the spouses, their address, their birthdate and their nationality.
- Proof of marriage registration
- Divorce settlement agreement : it outlines the terms of the separation and the effects of the divorce, including a declaration regarding the liquidation of the matrimonial regime (or a statement that no liquidation is necessary).
- The minor child’s information form
Other cases of divorce :
According to articles 1106 and 1107 of the French Civil Procedure Code, the procedure begins with the submission of a summon or petition to the family court judge. It requires :
- Submission of a summon or a petition : It includes the date of the orientation hearing, the interim measures requested, and the possibility of recourse to an amicable arrangement. However, the cause of the divorce, especially in cases of wrongful divorce, must never be included.
- Valid identification documents
- Proof of marriage registration
- A proposal for settlement of pecuniary interest : It includes a summary description of the spouses’ assets and the intentions for liquidation and distribution of the assets.
2. Required Documentation
When a foreigner seeks a divorce in France, they must provide specific documentation to initiate the process. The essential documents include :
Original marriage certificate :
The original document proves the legal existence of the marriage and requires submission in its original form.
Passport copies or other valid identification documents :
These documents help confirm the identity and nationality of the parties involved.
Residence documentation :
It may include rental contracts, utility bills, or official residence permits.
Property ownership papers (if applicable) :
If the spouses own property in France or abroad, property ownership documents are necessary to resolve issues of property division during the divorce. These may include deeds of sale, property titles, or statements of joint ownership.
Child-related documents (if applicable) :
The couple must provide additional documents for their children, including birth certificates, custody arrangements, and existing child support agreements. If the children were born outside of France, they must apostille or translate the birth
Income and financial documents :
Courts may require financial documentation when spouses contest issues such as spousal support, child support, or property division. This includes bank statements, pay slips, tax returns, and other proof of income.
Proof of Separation :
This could include rent contracts, utility bills in the name of the spouse living separately, or other documents showing that the spouses have not been living together for a specified period, particularly in cases such as divorce for permanent alteration of the marital bond
Legal basis : Article 237 of the French Civil Code
An official court-certified translator will likely need to translate any document in a language other than French into French.
3. Legal Rights and Property Division
The division of property during divorce depends heavily on he matrimonial regime the spouses are under, which can either be chosen by them through a prenuptial agreement or be default :
Community of Property regime : All assets acquired during the marriage, except those acquired by inheritance or gift, are considered joint property and will be equally divided between the spouses.
Legal basis : Articles 1569 to 1581 of the French Civil Code
Separation of Property Regime : There is no joint property and each spouse retains ownership of their individual assets and income. The division of property will involve only those assets that the couple specifically holds jointly, typically property purchased together during the marriage.
Legal basis : Articles 1536 to 1543 of the French Civil Code
Universal Community Property Regime : All property, regardless of when it was acquired, becomes joint property. This includes pre-marital assets and inheritance unless explicitly excluded in a prenuptial agreement.
French law provides specific provisions to ensure fairness, protect individual rights and consider the contributions of both spouses :
- Equal division of jointly owned property
- Protection of individual property rights
- Consideration of contributions to family assets
- Equal division of shared debts
- Allocation of the family home to one spouse for the best interests of the children and compensation to the other spouse (Article 1751 of the French Civil Code)
4. Child Custody Arrangements
In France, child custody is primarily determined by the Family Court to ensure the best interests of the child are prioritised. The judge’s decision will typically cover :
Custody rights : The judge determines whether the child will have joint custody (charged equally between both parents) or sole custody (with one parent). He also decides whether both parents will continue to hold joint parental authority or if one parent will have exclusive parental authority.
Legal basis : Articles 373-2-9 and 373-2 of the French Civil Code
Visitation schedules : If one parent is granted sole custody, the other parent is usually given visitation rights, which means they can spend time with the child according to a schedule set by the judge.
Legal basis : Article 373-2-10 of the French Civil Code
Child support obligations : The judge will decide on the amount of child support that one parent will pay to the other to contribute to the child’s living and educational costs.
Legal basis : Article 371-2 of the French Civil Code
Costs and Timeline
The divorce process typically involves:
- Court fees
- Divorce by mutual agreement : Approximately €1,000 to €3,000
- Contested Divorce : Approximately €3,000 to €10,000
- Legal representation : Varies based on complexity
- Translation services : Required for foreign documents
- Timeline : 2-4 months for uncontested cases, much longer for disputed matters
Special Considerations
International Recognition
To ensure international recognition of the divorce:
- Obtain certified copies of the divorce decree
- Have documents properly authenticated
- Register the divorce in your home country
Common Challenges
Prepare for potential obstacles such as:
- Language barriers in legal proceedings
- Complex documentation requirements
- Cultural differences in legal approaches
- Cross-border enforcement issues
Conclusion
While navigating divorce procedures in France as a foreigner can be complex, understanding the process and requirements helps ensure a smoother experience. Seeking professional legal assistance to guide you through the specific requirements of your case and ensure you comply with all legal obligations.
For the most current information and specific advice regarding your situation, consult with a qualified legal professional who specializes in international divorce cases in Vietnam.
Head office: 14th floor, HM Town building, 412 Nguyen Thi Minh Khai, Ward 05, District 3, Ho Chi Minh City.
Phone number: +84 937215585
Website: hmlf.vn
Email: miller@hmlf.vn
