French Supreme Court Rules Allowance Claim Inadmissible for Divorce Granted Abroad
This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas.
In a judgment of 7 February 2024, the French Cour de cassation ruled that a compensatory allowance claim (“prestation compensatoire”) brought before French courts after the divorce was granted by a Belgian judgment is inadmissible.
Background
The spouses had married in France in 2001. In 2012, they obtained a divorce judgment in Belgium courts. The Belgian judgment did not grant alimony to the ex-wife. The ex spouses then moved back to France separately. The ex-wife initiated proceedings in 2018 before French courts to obtain a compensatory allowance (“prestation compensatoire”) on the basis of Articles 270 and 271 of the French Civil Code, which she could not request during the divorce procedure before Belgian courts as Belgian law which applied to the divorce only allows to ask for alimony (“pension alimentaire”).
Unlike alimony (“pension alimentaire”) under Belgian law, which requires the proof that the creditor is in need, the French compensatory allowance (“prestation compensatoire”) is granted without such proof as its purpose is not to fulfil the creditor’s needs, but to compensate the disparity that divorce may have caused between the ex-spouses’ living standards (see here for a recent decision recalling the aim of the compensatory allowance).
In a judgment of 9th November 2021, the Rennes Court of Appeal declared the ex-wife’s claim inadmissible under French law as the lex fori applicable to procedure.
Ruling
The issue was to determine whether a compensatory allowance claim brought after a final foreign divorce judgment was rendered following a procedure in which the ex-wife could not seek one pursuant to the foreign applicable law is admissible.
In its judgment of 7 February 2024, the French Cour de cassation upheld the judgment of the Rennes Court of Appeal and ruled that under French law the issue of the divorce and that of the disparity that divorce can create between the ex-spouses’ living standards must be settled in a single decision. After insisting that the recognition of the Belgian divorce judgment was not contested, the court ruled that Frech law applied pursuant to 3 and 5 of the 2007 Hague Protocol, and it was thus bound to declare the claim inadmissible. Finally, the court rejected the argument that such outcome amounted to a violation of the right of access to court as afforded by the ECHR.
Assessment
The articulation of French domestic law with applicable private international law instruments is delicate. On the one hand, the French rule is that issues of divorce and compensatory allowance must be decided upon by a single decision (Interpretation of Articles 270 and 271 of the French Civil Code). On the other hand, EU instruments submit both jurisdiction and choice of law to different rules concerning divorce (Brussels II ter and Rome III Regulations) and maintenance obligations (Regulation 4/2009 and 2007 Hague Protocol).
The issue arises as to whether the existence of different instruments of private international law governing respectively divorce and maintenance excludes the operation of a rule such as the French one, which requires that a single court handles both issues. At the very least, a preliminary issue to be addressed would be whether the courts requested to rule on divorce (here the Belgian court) and on maintenance (here the French court) were granted jurisdiction by both instruments so that each could have retain jurisdiction to rule on both issues. Then, one should wonder whether the French rule could be applied by a French court if the applicable law in the Belgian proceedings did not require and thus did allow to seek divorce and maintenance separately.