FRANCE: International divorce and conflict of laws issues: What happens to your divorce when you obtain it in a foreign country

The first issue of 2010 of the French Journal Du Droit International has dropped and it brought my attention to a divorce case that involved an international couple which was decided last year in France. It is a delicious find because it gives me the impetus to discuss a draft post that has been hanging around my archives on this divorce blog for several months now. It has to do with conflict of laws in divorce actions when the parties involved are nationals of different countries and it presents a procedural issue that I find compelling from a conflict of laws perspective. I almost couldn’t believe that such an exact scenario had been decided in France that I had been searching for.
But I was very disappointed with the way the French court decided this conflict of law issue. What happened in the case (which was commenced in 2005 in France) is that a Franco-American couple was getting divorced. The husband commenced an action for divorce in the courts of Toulouse, in Southern France. One month later, the wife commenced her own action for divorce in Massachusetts. The two cases seemed to be concurrently on the dockets in two different countries for several months, but the Massachusetts court sprinted ahead of the French court and issued a judgment of divorce in summer of 2006. At that point, the courts in Toulouse basically dismissed the husband’s case on the grounds that a judgment of divorce had already been issued in America and seemed not to give a fig about the fact that he had actually commenced his case in Toulouse before his wife ran ahead and brought her case in Massachusetts. This came down to a conflict of laws issue and the French court basically decided that since there was an American judgment that French courts would simply give comity to that judgment, notwithstanding that the French husband had filed his action before the American wife filed hers in Massachusetts. You can read the Journal post on the issue here.
I personally thought this was a very bad ruling. This is what I posted on the Journal’s webpage:

This type of forum shopping and divorce tourism should not have been upheld by the French Court. If the wife had already received service of papers for the French action, either the American courts should have declined jurisdiction on her suit (assuming the husband was savvy enough to bring this to the American or even French court’s attention) or the French courts should have declined to enforce the American judgment. This is a very bad precedent. This sends the message to forum shoppers – particularly those with deep pockets – that if they don’t like their odds in the French jurisdiction they can just run off and commence a parallel action someplace else, like America, and have the French courts be bound by what happens in the second jurisdiction (even if the French action was commenced first). This creates confusion, inconsistency and inequity not only between the parties, but between the laws of both countries.

I understand that the French courts are moving towards a more sort of international interpretation of laws and it’s not a bad thing necessarily. In fact it goes far to dispel the perception of “French chauvinism” that some folks have traditionally held towards the French. There are many international and bilateral treaties today that did not exist in the Napoleonic era that necessitates more openness for France as well as other countries when faced with a conflict of laws situation.
Traditionally, only the French courts had jurisdiction over French citizens. In an article written by Gilles Cuniberti on a related case the author writes:

Article 15 of the Civil Code provides that French citizens may be sued before French courts. This provision obviously gives jurisdiction to French Courts over French defendants. But the provision was also construed by the Cour de cassation as a defence against the recognition of foreign judgments delivered against French defendants. From the French perspective, the jurisdiction of French Courts over French defendants was thus exclusive. This privilege could be waived by the French defendant, for instance by agreeing to a jurisdiction clause, or by defending on the merits before the foreign court without challenging its jurisdiction. But when it had not been waived, it was a fortress that could not be defeated. It applied in all almost fields (contract, torts, family law, etc…), except in immovable or enforcement matters. But its scope was shrinking as European conventions and many bilateral treaties excluded its application.

In the case that Mr. Cuniberti was discussing, Prieur, the French courts were called upon to decide whether Article 15 of the Code applied to a French citizen who had married a Swiss woman and whose divorce from subject woman in Switzerland had resulted in a Swiss judgment which the French citizen felt was not applicable to him pursuant to the Code which stated that French citizens could only be sued in French courts and only the French courts had jurisdiction over French citizens. The Prieur court decided that indeed, the Swiss judgment of divorce would stand, that the French citizen was bound by the judgment, and that going forward foreign judgments would be enforceable against the French citizen in France. This decision pretty much struck down an 80 year rule that only French courts had jurisdiction over French citizens.
As I said, the Prieur ruling was a good ruling. I am not sure that this was a true “conflict” of laws scenario, though. I don’t think there was a real “conflict” here in a manner of speaking. Rather, the French court simply and rightly decided to enforce the Swiss judgment and not to entertain the husband’s bad faith attempt to get out of a perfectly legitimate judicial decision by using the Code to circumvent justice.
I think Swiss case is distinguishable from the case at bar involving the Franco-American couple, as discussed in Journal du droit international. It’s a whole different beef, actually. In the Swiss case, the couple met and were living in Switzerland and a judgment of divorce was issued in Switzerland. No other proceeding was commenced in France, except for an enforcement proceeding after a judgment of divorce was issued in Switzerland and thus no real conflict of laws issue was ignited.
That can be distinguished from the case at bar involving the Franco-American couple where you have nothing but a bold-faced forum shopping situation. This was not an enforcement issue after the fact. This was divorce tourism. This was forum shopping. And it presented a classic conflict of laws scenario by pitting the laws of both countries against each other and forcing a duel. Because  an action had already been commenced in France, the wife’s action in America was a parallel action which should have been stricken by one of the courts. Either the American courts should have dismissed her filing or the French courts should have refused to enforce it. This matter should have been hashed out between the courts by competent counsels and the French courts should have won, hands down.
I am certain that the Massachusetts court – a very liberal jurisdiction by any definition – would have given full faith and credit to any decision that was ultimately rendered in France in this instance. Barring that, I think the husband in the Franco-American action ought to appeal to the Massachusetts appellate court to overturn the judgment of divorce that was issued in Massachusetts on conflict of laws grounds. Once that happens, he should then petition the French courts to re-open his divorce case there.
Of course, if the outcome of the American courts would mirror what he would get in Toulouse, he may just as soon decide to forego more legal action and legal fees. But if there would be a significant difference in outcome, I would advise him to appeal.

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