International jurisdiction
For the question of jurisdiction in the event of divorce, it is irrelevant in which country the spouses were married. However, the marriage law applicable at the place of marriage must be complied for the marriage to be valid.
For EU countries, the Brussels II-b Regulation applies, which lists in detail in which cases of divorces with a foreign connection which court is to be called upon. If there is no connection to an EU country, the jurisdiction of the court is based on the national law of the individual countries. § 98 Para. 1 FamFG lists four cases in which a German court has jurisdiction for an international divorce. It is quite possible that several countries may have jurisdiction under their respective national laws. In such a case of concurrent jurisdiction, the country in which the divorce was first filed and served to the other spouse is decisive. From this point in time, the divorce is pending before this court and no other court can decide on the divorce. The double lis pendens constitutes a procedural obstacle in accordance with § 261 Para. 3 No. 1 ZPO. If one spouse files for divorce in France, the other spouse cannot file for divorce in Germany. Until the jurisdiction of the French court has been clarified, the court subsequently seized will suspend the proceedings of its own motion until the jurisdiction of the French court has been clarified (Art. 19 Para. 1 Brussels IIb Regulation). See the following article on double lis pendens in the EU.
Good to know: if you live in France, you do not necessarily have to get divorced in France!
If, for example, both spouses are German nationals but live in France, they can also choose to take their case to a German court (in this case the Berlin-Schöneberg Local Court), irrespective of their habitual place of residence, in accordance with the so-called Brussels II b Regulation, if they do not wish to divorce in France.
The applicable divorce law
According to the Rome III regulation, the divorce law of the country in which the spouses have their last habitual residence applies. A person has their habitual residence where they reside under circumstances which indicate that they are staying in that place or area on a more than temporary basis. This must be determined based on the actual circumstances.
Rome III also opens the possibility of determining the law applicable to the divorce by agreement in certain cases. It is therefore possible for a divorce to be conducted before a German family court in accordance with foreign law.
French divorce law
In addition to the four types of divorce, French law also recognizes the possibility of a notarial divorce.
Divorce by mutual consent
As in Germany, the spouses have the option of divorcing by mutual consent in court (divorce par consentement mutuel), Art. 230-232 Code Civil. To do this, the spouses must agree on the divorce and the consequences of the divorce and submit a divorce settlement agreement to the judge. If the interests of each spouse and the children have been sufficiently considered, the judge will pronounce the divorce after holding an oral hearing. French law does not stipulate a specific separation period before the application for divorce can be filed.
Divorce by acceptance of the breakdown of the marriage
If the spouses want a divorce in principle, but do not agree on the consequences of the divorce, they can declare at the first hearing that they accept the divorce on the grounds of breakdown of the marriage (Art. 251 of the Civil Code). The declaration of acceptance is irrevocable.
In this form of contested divorce, the competent family court judge first reviews the application with each spouse separately and then together. Only then do the lawyers involved take part in the discussion (Art. 250 Para. 2 of the Civil Code). Both parties must be represented by a lawyer in the divorce proceedings.
Divorce for fault
At the request of one spouse, divorce can be applied for on the grounds of serious misconduct or repeated breach of duty by the other spouse (Art. 242-246 Code Civil).
The applicant’s misconduct can also lead to divorce. In the case of a divorce and counterclaim for fault, the marriage is divorced equally on the grounds of fault if it is established during the hearing that both spouses are equally at fault.
At the request of both spouses, the judge may restrict himself or herself to stating a ground for divorce in the grounds for the judgment, without going into the respective fault of the spouses (Art. 245-1).
If one spouse files a petition for divorce on the grounds of irretrievable breakdown of the marriage and the other spouse files a petition for divorce on the grounds of fault, the family court judge must first rule on the petition for divorce on the grounds of fault; only if the latter is to be dismissed must he or she rule on the other petition (Art. 246 Code Civil).
The divorce on the grounds of fault no longer leads to considerable financial advantages for the spouse who applies for it. As a rule, this procedure is now only used in the most serious cases. The weaker spouse can apply for compensation if the divorce is due to the exclusive fault of the other spouse and he or she suffers particularly serious disadvantages because of the divorce. The amount of compensation is independent of the marital misconduct (Art. 266 Code Civil).
In the event of marital violence, the victim has the option of appealing to the divorce judge, even if there are no ongoing marriage proceedings, so that the judge can order the spouses to live separately and possibly grant the victim the right to sole residence in the shared matrimonial home. However, the measure becomes invalid if no petition for divorce has been filed within 4 months.
Divorce due to final breakdown of the marriage bond
If the marital relationship has been terminated for at least two years at the time the divorce petition is served and there is an intention to separate on the part of at least one spouse, a divorce may be granted on the grounds of final breakdown (altération définitive du lien conjugal), Art. 237-238 Code Civil. The spouse who did not apply for divorce may apply for compensation for the damage he or she has suffered because of the dissolution of the marriage if he or she had wanted to continue the marriage (Art. 266 Code Civil).
If the divorce was dismissed on the grounds of fault, divorce may be requested on the grounds of final breakdown. In this case, the two-year separation period does not apply (Art. 238 para. 2 Code Civil).
The possibility of a notarized divorce in France
Following the legislative reform no. 2016-1547 dated 18.11.2016, it is now possible to divorce before a notary in France since 01.01.2017. This should make the process simpler, more peaceful and more efficient overall. Marriage is no longer seen as an institution, but as a contractual union that can be dissolved by mutual agreement between the parties without the need for court involvement.
As a result, out-of-court divorce is not as costly as divorce in court. Nevertheless, the entitlement to legal aid (aide juridique) remains in place for notarial divorces.
Article 229 Code Civil has been extended to the effect that the spouses can now divorce by means of a private contract countersigned by lawyers (acte sous signature privée contresigné par des avocats), which is registered with the notary.
A notarized divorce is not possible under Art. 229-2 para. 1 Code Civil if a minor child, who has been informed by his or her parents of his or her right to be heard, requests to be heard by the family court judge.
If one of the spouses is under a protection regime, divorce by private deed is also not possible (Article 229-2 para. 2 Code Civil).
Divorce by private deed requires that both parties are each independently represented by a lawyer (Art. 229-1, Art. 1374 Code Civil). The spouses draw up a private deed through their lawyers, which is registered by a notary. The notary checks whether the legal formal requirements have been met (Art. 229-3 Code Civil).
Each lawyer sends the draft agreement to his party by registered letter. The agreement may only be signed after a reflection period of 14 days following reception of the registered letter (Art. 229-4 Code Civil).
The agreement is enforceable from the day on which it is registered by the notary (Art. 229-1 para. 2 Code Civil). Appeals are not possible as this is an out-of-court procedure.
Do you have questions about divorce in France or are you unsure in which country your divorce will take place? We will be happy to advise you on this topic! We also offer consultation over the phone or via videoconference.
