Case law Developments in PIL

French Supreme Court Opens Door for Recognition of Foreign Bigamous Marriage

On 17 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision in the field of family law (Cass. Civ. 1re, 17 November 2021, n°20-19.420). The Court held that a bigamous marriage is not automatically void under French law when the spouses are foreign nationals. Indeed, the French choice of law rule on the validity of marriage provides for the application of the law of the spouses’ common nationality (article 202-1 of the Civil Code). Therefore, the lower court is required to designate on its own motion the applicable law to the marriage to assess its validity.

Facts and Issue at Stake

A couple, both Libyan nationals, married in 2000 in Libya. On November 2017, the wife filed a petition for divorce before French court. The lower court ruled that the request for divorce was inadmissible, because the husband was already married in Libya before this marriage. French law prohibits bigamy pursuant to article 147 of the Civil Code. As a result, the lower court had held that the second marriage “has no legal existence” and thus cannot be dissolved by a French court.

The wife appealed to the French Supreme Court based on a traditional conflict-of-law reasoning. She argued that the lower court should have checked whether the personal law of the spouses (as applicable law to marriage pursuant to article 202-1, op. cit.) did authorise bigamy. If so, the second marriage, celebrated abroad, could produce effects in France and thus be dissolved by a French court.

Legal Background

Under French domestic family law, article 147 of the French Civil Code lays down the principle of monogamy. French criminal law punishes a spouse guilty of bigamy (article 433-20 of the Penal Code). At the same time, comparative law reveals that some foreign legal systems allow polygamy. Even if this institution is in sharp contrasts to Western socio-cultural values, the global mobility of persons requires to pay attention to a possible acceptance of such marriages in the French forum.

Remarkably, the French legal system has traditionally adopted a nuanced position, depending on the proximity that the situation of bigamy or polygamy has with the forum. In France, no bigamous or, a fortiori, polygamous marriage can be validly celebrated, even if the second marriage is concluded between the same persons, already married abroad (Civ. 1re, 3 February 2004, n°00-19.838). The situation is different when the bigamy is not “created” in France, but was legally established abroad. The second marriage may then, in certain circumstances, be recognised in France and produce certain effects (e.g. in the field of social security rights or succession). In these latter circumstances, two hypotheses must be distinguished.

Either the national law of one of the spouses (pursuant to article 202-1 of the Civil Code) does not allow bigamy. French law will consider this prohibition as constituting an absolute impediment to marriage prevailing over the more liberal content of the national law of the other spouse. French authorities will therefore refuse to give effect to this marriage in France. For instance, a second marriage, validly celebrated abroad, of a foreign spouse whose personal status admits polygamy, with a French woman, cannot be recognised in France (Civ. 1re, 28 January 2002, n°00-15789).

Or the personal status of the spouses, i.e. their common or own national law, authorises polygamy. The French court may, to a certain extent, recognise the second marriage (and make it produce effects) by attenuating the “eviction” impact of the French fundamental values (effet atténué de l’ordre public). This has been held by the French Supreme Court on several occasions (Civ. 1re, 28 January 1958, Chemouni and more recently Civ. 2e, 14 February 2007, n°05-21.816).

Solution and Legal Reasoning

In the present case, the lower court ruled on a domestic law basis. The case, however, was international and required a conflict-of-law analysis since the parties may not dispose of their rights. It is worth recalling that French PIL does not provide for a systematic mandatory application of choice of law rules. But French courts are required to apply conflict-of-law rules in non-patrimonial matters, such as personal status issues, since the parties may not dispose of their rights. They even have to determine the applicable law ex officio (comp. recently on the context of EU PIL, Civ. 1re, 26 May 2021, n°19-15.102, commented on the blog here and here).

In the absence of French written rules of PIL, the French Supreme Court has traditionally based this solution on article 3 of the French Civil Code. It was the only “international” provision in the Code Napoleon at the time of the judicial development of PIL rules in the French legal system. Unfortunately, it may be confusing for the reader, since article 3 makes no mention whatsoever of the court’s role in conflict-of-law matters. This is a strong point in favour of a (forthcoming?) French PIL codification.

This is the ground on which the French Supreme Court annulled the judgment of the Court of appeal in this case: in the field of marriage, conflict-of-law rules are mandatory. The lower court should have verified, in accordance with the personal law of the spouses pursuant to article 202-1 of the Civil Code, whether the foreign bigamous marriage was valid (so that, in the affirmative, it could be dissolved). At that stage of the reasonning, the French prohibition of bigamy pursuant to article 147 of the Civil Code did not matter.

Assessment

We could maybe regret that the Supreme Court does not provide for the full PIL reasoning in order to be more informative. It will be indeed for the lower court to proceed to the second step of the choice of law analysis. The validity of the foreign marriage could be denied, despite its validity under the applicable law, on the basis of public policy. If the content of  foreign law infringes the fundamental values of French society, a French court may displace it and apply French law instead.

There is, however, a limit mentioned above: in order to protect rights acquired abroad and the permanence of the status of individuals across borders, the effect of public policy may be limited (effet atténué de l’ordre public). This has traditionally been the case in the field of polygamy when it is allowed under the personal status of the spouses (see above). The lower court should thus exclude the eviction of the foreign law despite its sharp cultural difference with French substantive family law and consider the foreign marriage as valid.

In this case, the bigamous marriage should be recognised so that the second wife is allowed to divorce. In other words, as a matter of policy, the private interests of the second wife should prevail. Whether this view would be shared by all Member States in the implementation of the EU PIL instruments on family matters is another matter.

Marion is law professor at Artois University (France)

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