International divorce in France for English-speaking and binational couples

Most people facing an international divorce have already spent weeks reading before they contact a lawyer. They have read about French law, about American law, about the Hague Convention, about what a friend went through in London. What they have not found is someone to tell them which of it applies to their own situation. That is usually where the work begins.

Olivia Uzan has practised family law in Paris for more than twenty years and is also admitted to the California Bar. Her clients are American, British, Canadian and Australian expatriates living in France, French nationals married to foreigners, and couples whose lives are spread between Paris and New York, Los Angeles or Miami. What they have in common is that their divorce touches two legal systems at once, and that they need it explained in English by someone who knows both.

The first question is not who gets what

In an international divorce the important decisions are made before anything is filed. Which court will hear the case? Under which law? Is there a risk that the other spouse files first, somewhere else? These questions sound technical. They are not. The answers determine how the property will be divided, whether there will be a compensation payment and how large, and where the children will live.

Between France and another EU country, jurisdiction follows European rules based mainly on where the spouses live and, failing that, on their nationality. Between France and the United States there is no such framework. Each country applies its own rules, both courts may consider themselves competent, and the European mechanism that stops two courts hearing the same case does not apply across the Atlantic. Practitioners regularly see a spouse file in Paris and the other file in New York or Los Angeles within a short time of each other, each hoping for the forum that suits them best. Sometimes the right move is to file immediately. Sometimes it is to wait and let the other side commit first. Knowing which is the case is a large part of the strategy.

Filing in France does not always mean French law

This surprises many clients. A French judge may find that the divorce is governed by the law of another country, because that is where the couple lived, or because both spouses are nationals of that country. The spouses can also choose the applicable law themselves, in writing, within a list set by European rules, and that choice will be respected provided it is made in time. The law that governs the divorce may, in turn, be different from the law that governs the couple’s property, which depends on their matrimonial regime and on where and when they married.

None of this is a reason for alarm. It is a reason to look at the whole picture before acting, because a choice made at the right moment can replace uncertainty with something predictable.

How divorce works in France

French law offers two broad paths.

If the spouses agree on everything, they can divorce without going before a judge at all. Each has their own lawyer, the agreement is drafted as a private deed, signed by both spouses and both lawyers after a compulsory fifteen-day reflection period, and filed with a notaire, which makes it enforceable. There is no hearing and nothing is made public. Where the couple’s affairs are simple it can be completed in a matter of weeks; where property has to be divided, a few months is more realistic. A judge is still required if a child old enough to have a view asks to be heard, or if one spouse is under a protective measure.

In an international case this route calls for particular care. Within the European Union such a divorce is recognised without difficulty. Outside it, and notably in the United States, there is no court judgment to present, and some authorities are unfamiliar with a divorce that no judge has pronounced. It is usually manageable, with a certified copy of the deed and the notaire’s attestation, but the agreement has to be drafted with that later step in mind from the first line.

If the spouses do not agree, the case goes to the family judge. The divorce can be granted because both accept the principle of separating, because the marriage has broken down after at least a year living apart, or because of the fault of one spouse, a ground that now accounts for fewer than one divorce in ten. Early in the proceedings the judge fixes the interim arrangements: who stays in the family home, what is paid to whom while the case is pending, where the children live. At the end the judge decides what the spouses could not agree, including whether a prestation compensatoire is due.

Three financial questions, not one

English-speaking clients often arrive with the idea of a single global settlement. French law separates the money into three distinct questions, each with its own rules.

The first is the division of the couple’s property, which follows their matrimonial regime. A couple married in France without a contract is generally under community of acquisitions: what was earned or bought during the marriage is shared, what each owned before or received by gift or inheritance is not. Couples married abroad or who signed a contract are a different matter, and the analysis can be intricate. See the page on prenuptial agreements and matrimonial regimes.

The second is the prestation compensatoire, a payment, usually a lump sum, meant to correct the gap in living standards that the divorce opens between the spouses. It is not alimony, and treating it as alimony leads to poor decisions. It has its own page.

The third is child support, a monthly contribution to the children’s upbringing fixed according to each parent’s resources and to the time the children spend with each of them. The ministry of justice publishes an indicative scale; judges consult it but are not bound by it. This goes together with the arrangements for the children, covered on the page on custody and relocation.

A French judgment in America, an American judgment in France

Two things are often confused here: being recognised as divorced, and getting the financial terms enforced.

The first is rarely a problem. A divorce pronounced in France is recognised throughout the European Union without any formality. In the United States, recognition depends on the law of each state, and state courts will generally accept a French divorce where the French court had a proper connection with the couple and both spouses were able to take part. The reverse is also true: a couple divorced in California are divorced in France, without any procedure.

The second is where the work lies. The financial parts of a French judgment, the prestation compensatoire, child support, the division of property, may need a separate enforcement action in the American state concerned, under rules that differ from one state to the next. In the other direction, an American judgment cannot be enforced in France, against assets or against a person, until a French court has granted it exequatur, a procedure that checks the foreign court’s jurisdiction, the fairness of the proceedings and the absence of fraud, without reopening the merits.

An agreement that reads well in Paris but cannot be enforced in California has not solved anything. Every agreement drafted at the firm is written with the second country in the room.

Why one lawyer who knows both systems

The usual arrangement in a Franco-American divorce is a French lawyer on one side and an American lawyer on the other, each explaining their system to the client, who then tries to explain it to the other lawyer. A great deal gets lost in that exchange.

Because Olivia Uzan is admitted in both Paris and California, she reads a California marital settlement agreement the way she reads a French judgment, and she knows in advance what each court will accept. She handles her files personally, does not delegate them, and keeps her practice focused on family matters.

The first meeting

The first consultation is used to establish the facts, work out which courts may have jurisdiction, identify the applicable law and set out the options with their risks. Clients leave knowing where they stand and what the next step is, whether that is negotiating, filing or waiting.