Divorcing in France or in England and Wales

Emotional distress felt among family members during a separation or a divorce is all the more acute when there is an international dimension to the conflict. The element of uprooting as well as cultural differences and the interests at stake are also factors that make the situation for you and your children even more difficult, and it is paramount that you talk to an avocat or a solicitor in order to determine in which country you should start divorce proceedings.

Depending on your circumstances, it will be better for you to divorce in one country rather than the other. The cultural differences and the way each country’s legal system works are such that each society delivers its own particular solution to family conflicts. For now, England & Wales is generally thought to be more generous than France towards mothers with little or no work experience. However, although there may well be some truth to this, it is something of an over-simplification and should not to be taken at face value.

In accordance with the provisions of Article 3 of the Brussels II bis Regulation, which has primacy over the national law of each Member State, “In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

• the spouses are habitually resident, or
• the spouses were last habitually resident, insofar as one of them still resides there, or
• the respondent is habitually resident, or
• in the event of a joint application, either of the spouses is habitually resident, or
• the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
• the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.”

This Article shows that although a court may have jurisdiction over a divorce case on several grounds such as the residence and nationality of the spouses, no grounds of jurisdiction have primacy over any other.

In application of this Article, whereas a French tribunal and an English court may have equal jurisdiction – for instance one on the grounds of the spouses’ common nationality and the other on the grounds of their country of residence – European law states that the jurisdiction shall lie with the country where the divorce application was first made.

It is therefore important to bear in mind that the jurisdiction of a Member State is hanging in the balance upon few hours.

So if you are French and your country of residence is England, divorce proceedings will not necessarily take place in France even if you got married in France. Indeed, if a spouse files for divorce in France, a French judge will assert his jurisdiction on account of the French nationality of both spouses, while an English judge would equally have had jurisdiction because the country of residence of both spouses is England. Therefore, before starting divorce proceedings, it is paramount to talk to a lawyer in order to decide as quickly as possible and with full knowledge of the facts which country, based on your personal circumstances, will best serve your interests.

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