Home > Family > France > 2009-11-04 - Court of cassation, n. 08-20.574

2009-11-04 - Court of cassation, n. 08-20.574

Family · France · Divorce · Repudiation

Non recognition in France of a Moroccan judgment pronouncing a divorce

Key facts of the case - Mrs Y and her husband, Mr X, both Moroccan nationals, were married in Morocco but live in France. Mrs Y applied for divorce in France. Mr X invoked the judgment granting divorce issued by a Moroccan court and complains that the court of appeal of Caen declared Mrs Y’s application admissible and denied the validity of the Moroccan judgment pronouncing divorce.

Main reasoning of the court - According to the Court of cassation, the decision of foreign court which observes a unilateral repudiation by the husband without giving effect to the possible opposition of the wife and depriving the competent authority of any power but the power to settle the financial consequences of the separation, is contrary to the principle of equality between spouses (article 5 of Protocol n. 7 of the European convention of human rights).
Hence, it is contrary to the international ordre public as well.
The spouses divorce is a divorce “under judicial control” ruled by the Moroccan Family code (articles 78 to 93) published in February 2004. The husband can obtain the divorce without the wife being enabled to oppose the divorce application. In addition, the Moroccan judge intervention in the proceedings is limited to the financial consequences of the divorce when the conciliation has failed. Moreover, the wife cannot lodge an appeal with a court for the same application unless she has been authorized by her husband. Accordingly, it is held that the Moroccan judgment cannot be recognized and give effect in France.

Comment - Usually, the steady position of the Court of cassation consists in refusing to give effect in France to the Moroccan judgments recognizing repudiation. Indeed, it considers that the wife is deprived of a right equivalent to the husband’s right to dissolve the marriage. Since the reform of 3 February 2004 of the Moroccan family law and especially of the divorce, the wife has similar rights during the proceedings. Nevertheless, it seems that the Court of Cassation does not change its position.

See the decision: 2009-11-04 - Court of cassation, n. 08-20.574.