Case study : Marie and Pierre got married in France. Neither a marriage contract nor any other prenuptial agreement was signed. They initially lived together in Wales. After approximately two years they moved back to France.
Marie filed a petition for divorce. The question is: which law will govern their dissolution of marriage?
Typically, a French lawyer will ask for:
- the wedding date,
- the place where the first residence was established after the wedding,
- any prenuptial or other agreement (as any valid one would identify the prevailing law).
In the absence of such agreement / contract, several rules may be considered, depending on the wedding date:
- Before 1. September 1992, rules of French domestic law apply.
Under French law, the applicable law is determined in the light of the intention of the spouses. An overview of the case-law reveals that the place where the spouses established their primary residence constitutes strong evidence.
If Marie and Pierre got married before 1992, the governing law may be Welsh law, as they used to live there after getting married. All factual information is taken into consideration including the spouses’ intentions.
- Between 1. September 1992 and 29. January 2019, the Haag Convention on the law applicable to matrimonial property regime from 14. March 1978 applies.
Under article 4, the applicable law is deemed to be the law of the spouses’ first primary residence. Marie and Pierre used to live in Wales when they got married. Consequently, Welsh law shall apply.
However, under Article 7 the applicable law may change if:
- both spouses chose to settle in their homeland or
- the spouses’ residence lasts for over 10 years or
- the applicable law was that of the common citizenship in the event the spouses hadn’t established a common residence anywhere before and they then establish their primary residence together.
Thus, as Marie and Pierre are French citizens, as soon as they come back to France and settle there, French law is applicable.
- After 29. January 2019, the EU Regulation implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes shall be applied.
Under Article 26, the applicable law will be of the State:
- « of the spouses’ first primary residence, or
- of the spouses’ common nationality, or
- with which the spouses jointly have the closest connection, taking into account all the circumstances».
As Marie and Pierre established their first primary residence in Wales those rules would apply.
Unlike the Haag convention, mere change of the primary residence won’t affect the prevailing law determination.
Consequently, the first primary residence is the determining factor. However, its importance depends on the wedding date. Moreover, the EU Regulation achieves more certainty by ensuring that no automatic change will occur if spouses change their place of residence.
Prisca BLARD
SCP BKP Avocats et Associés
Law office based in PARIS / VERSAILLES