The Franco-Moroccan divorce and inefficiency of the 1981 bilateral convention

On August 10, 1981 a convention was signed between the French Republic and the Kingdom of Morocco concerning the status of persons and family and judicial cooperation (see text: http://www.amb-maroc.fr/documents/convention % 201981.pdf).
 
Unlike many bilateral agreements on this matter, the French-Moroccan Convention has always intended to apply today and the rules of conflict of laws contained in the Convention are not cleared by the conflict rules enacted in the future by European regulations.
 
Article 4 of the Convention further states that  « the law of one of the two states designated by this Convention may be refused by the courts of another State unless it is manifestly incompatible with public policy. »
 
On the surface, this convention is intended to apply almost always in a Franco-Moroccan divorce.
 
Yet it is clear that the “public policy exception” has now become the norm and that the agreement is often dismissed by the courts:
• When the French judge must pronounce the divorce of Moroccan (I)
• When the French judge must assess the validity of a divorce judgment in Morocco (II)
 

  1. The difficult enforcing Moroccan law by the French divorce court

 
Recall first that the French judge will be especially competent[1] to divorce spouses when they were in France their current or last common residence, regardless of their nationality.
 
The same rule applies to the Moroccan judge may therefore experience the divorce of two French resident in Morocco.
 
If both spouses are of the same nationality, they can also enter the jurisdiction of their home country.
 
Thus, two Moroccans living in France may enter either the French or Moroccan court jurisdiction to grant the divorce.
 
Once accepted the jurisdiction of the court, we must look to the law applied by the courts.
 
At the end of section 9 of the 1981 Convention, « the dissolution of marriage is decided according to the law of the two states whose husband both have the nationality of the date of submission of the application. If at the time of submission of the application, one of the spouses has the nationality of one of the two states and the second that of the other, dissolution of marriage is decided according to the law of the State in territory of which the spouses have their common home or had their last common domicile. »
 
In other words, if a French judge is assigned, he must apply:
 

  • The Moroccan family code if both spouses are Moroccan
  • The French civil code if at least one spouse is French

 
The application of the French law by the French judge obviously raises no difficulty. However, under Moroccan law seems much more compromised …
 
There are consensus procedures.
 
The other procedures are to be reserved for the husband or the wife.
 
Two divorce proceedings are thus reserved for the husband (Talak)
• revocable divorce (RIJII)
• irrevocable divorce (Bain)
 
Others are reserved for women and are based on:
 
• the damage or failure of the husband to one of the conditions stipulated in the marriage, that is the fault
• poor maintenance, ie failure to pay in kind or monetary support payments
• Absence
• the oath of continence or neglect
 
This list is not exhaustive. A very informative report written by French magistrates after a study tour in 2007 is available on the net: http://www.jafbase.fr/docMaghreb/EtudeDroitMarocain.pdf.
 
If previously the French judge rejected repudiation and more generally all forms of divorce reserved for spouses, a judgment of the Court of Appeal of Douai dated January 19, 2012 (No. 11/00923) has extended this rejection of all forms of discriminatory divorce, they are reserved for the husband or wife.
 
In this judgment, which seems quite logical given reasons for decisions made ​​by the Court of Cassation rejected repudiation precisely because of their unilateral, the French judge refused to apply the Moroccan law where divorce form is reserved either the husband or the wife. The Court of Appeal will thus altering the basis for divorce retained by the trial court, that the fault of the husband, and a divorce for “discord”, one of the only forms of divorce open equally to both spouses.
 
This judgment is also particularly representative of a French-Moroccan divorce because the husband had obtained several years before a divorce in Morocco that had simply not been recognized by France … Meanwhile it had remarried and was therefore in France living in polygamy …
 
In short, if the divorce is not consensual, forgetting on the application of Moroccan law by the French judge and in complete violation of the Franco-Moroccan Convention.
 
Since the divorce form is reserved to one or the other of the spouses, the French judge will see a discrimation and will play public order. Moroccan husband would be well advised to agree a minimum if they want their divorce to escape the application of the French law.
 

  1. The inapplicability judgments Moroccan divorce in France

 
Two main cases can arise:
• Both spouses of the same nationality or nationalities, are residents of Morocco and obtained a divorce judgment there;
• Both spouses as well Moroccan nationality, but are French residents got their divorce there because of their common nationality.
 
The question of the applicability in France of Moroccan decisions will arise at several events:
 
• At the request of the trial transcript Moroccan divorce on Vital or French husband;
• During the execution of the Moroccan decision on the French territory, recovery support; problem on the “edge” of child …
• When submitting a second application for divorce by either spouse before the French courts.
 
First hypothesis: one spouse is French and has to mention his divorce on his birth certificate in order notably to remarry. Here, Article 14 of the Convention indicates that an exception in the past become final decisions may be published or transcribed without enforcement[2] on civil registers.
 
The reality is quite different as the prosecutor of Nantes, to oversee the enforceability of foreign judgments will often or almost always, invite the parties to proceed with the enforcement …
 
You will then have to fight a French magistrate to prove that the Moroccan procedure was in accordance with French law and order.
 
Second case: you are enforcing force the Moroccan decision in France and no matter your nationality: you have to go there too by the exequatur procedure and it is very far from over!
 
As a reminder, to grant enforcement of a foreign decision, the French court must now verify that three conditions are met[3]:
 
« To grant enforcement out of any international agreement, the French judge must ensure that three conditions are met, namely indirect jurisdiction of the foreign court, based on the incorporation of the case judge, compliance with the order international audience of substance and procedure and the absence of fraud to law; the judge hearing the application therefore did not verify that the law applied by the foreign court is that designated by the conflict rule of French law. »
 
The death blowto the Moroccan decisions was given with 5 decisions February 17, 2004 by the Court of Cassation.
 
The Supreme Court and the lower courts were then systematically rejected all requests for enforcement of divorce decrees granted by unilateral application of the husband. The judgment of the Court of Appeal of Douai above suggests that the refusal of enforcement shall extend to divorce decrees granted by unilateral request of the wife …
 
Third situation, one spouse filed a new petition for divorce before the French judge despite the existence of a Moroccan decision.
 
There will, because since that decision will have very little chance of being recognized by the French judge !! The authority of res judicata therefore has a range quite relative when the thing was tried in Morocco …
 
However, the French-Moroccan Convention seems to have intended to apply when there is no need!
 
Indeed, sometimes the second court to consider before the first has had time to make its decision.
 
The traditional rules of private international law lead to the French judge seised:
 

  • Or to decline jurisdiction in favor of the trial judge properly before it considers and halt the de facto French proceedings;
  • Continuing the divorce proceedings introduced in France if it considers that the foreign judgment to come does not appear to be recognized by France.

 
In accordance with the case-law, it is clear that the French judge would be well advised to continue divorce in France as if nothing was happening in Morocco since the Moroccan decision can not be surely executed in France.
 
But here it seems that the Supreme Court in a recent judgment of 24 October 2012 (No. 11/25278), ensures the complication by requiring the application of Article 11 of the Convention which states that in an actual situation lis pendens[4], the french judge seised shall not divest or continue the divorce, but “stay proceedings” pending the issuance of the Moroccan decision.
 
Why wait for the delivery of a decision that we do not recognize?
 
This only delays very long after a divorce …
Here, the application of the Convention worse for spouses.
 
Recently, this time in terms of union and not disunity, the French judge[5] had the opportunity to rule the Franco-Moroccan agreement to allow the marriage of a French-Moroccan gay couple on French territory and the name of our new concept of international public policy.
 
In conclusion, it appears that the French-Moroccan Convention blurs further avenues for couples today than it clarifies the situation: it makes them believe that divorce is possible in Morocco, as he will have only very unlikely to be recognized in France, except perhaps for consensual divorces. The agreement also gives them a weapon to delay the French decision that will only really applicable on French territory. Maybe we think it is simply to repeal this agreement or to write another convention bringing the two laws on the merits in order to harmonize our rights.
 
A little advice for mixed couples or Moroccans living in France : for now prefer divorce in France.
 
Noémie HOUCHET-TRAN
Attorney at the Paris Bar
http://nhtavocat.wix.com/divorce
 
 
 
[1] Non-exhaustive list
[2] Legal proceedings to determine the validity of a foreign judgment and effectiveness in France
[3]Since judgment Cornelissen delivered on 20 February 2007 (No. 05-14082)
[4] Two courts dealing simultaneously
[5] Court of Appeal of Chambéry, October 22, 2013, No. 13/02258