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Home > Family > France > 2010-11-23 - Court of appeal of Toulouse, n. 09/05257

2010-11-23 - Court of appeal of Toulouse, n. 09/05257

Family · France · Religious marriage

Application of the Moroccan family code criteria of marriage

Key Facts of the case - The starting point of this litigation is Article 22-1 of the Civil code, which provides that “A minor child one of the parents of whom acquires French nationality, becomes French as of right where he has the same usual residence as that parent, or resides in turn with that parent in the event of separation or divorce.” Nevertheless, Article 22-2 provides that those provisions do not apply to a married child.
Pursuant to those provisions, Nassim O. had applied for a declaration of French nationality for his daughter, Hayat O., in November 2000. This declaration had been regularly registered in September 2001. In May 2006, and pursuant to Article 18 of the civil code, Hayat O. had obtained a certificate of French nationality for her own son, Nassim O., whose father is Driss O.
Nevertheless, the Public prosecutor lodged an appeal on the ground that Hayat O. could not benefit from the provisions of Article 22-1 of the civil code – and hence her son of Article 18 – since she married in June 2000. Hayat O. argues that in Moroccan law, the validity of marriage requires the presence of two “adoul” (religious notaries) to testify of the exchange of consent between the spouses and those were missing on June, 3d, 2000. According to the civil court of Albi, and with regard to the 2004 Moroccan family code (Article 6), Hayat O. and Driss O. were actually not married but simply engaged (“fiancés”) in August 2001. The public prosecutor appeal is dismissed.

Main reasoning of the court - The Court of appel overturns the ruling. It holds that pursuant to the French-Moroccan convention of 10 August 1981 and Article 3 of the Civil code, the applicable provisions are those enforceable in 2001. It follows that the 2004 Moroccan family code had not entered into force and that only the 1957 Moroccan code of the personal Statute was in force at this time. Pursuant to Articles 2 and 4 of this code the validity of marriage depends on the exchange of consent between the spouses in presence of two “adouls”. But it results of a ministerial note from the French foreign affairs ministry in consultation with Moroccan authorities that this presence is only required for establishing the marriage settlement. Since the spouses exchanged their consent in June 2000, Hayat O. was married.