Home > Family > France > 1988-07-06 - Court of cassation, n. 86-16.499

1988-07-06 - Court of cassation, n. 86-16.499

Family · France · Matrimonial property · Religious marriage

The assumed will of the spouses as regards the applicable law on matrimonial property applies only in case they made no express choice (ketouba)

Key facts of the case - Mr X. and Mrs Y. are both Moroccan nationals and married in Casablanca in 1967 before two rabbis-public notaries (“rabbins notaires”). They settled in France in 1970 and divorced in 1980. Concerning the divorce litigation, they disagree with the nature of their matrimonial regime. The court of appeal of Paris had held that French law is applicable to their legal situation and rejected the ketouba (marriage settlement) on the ground that this is an external rite linked to the religion of the spouses while the choice of the first place of residence after marriage is France.

Main reasoning of the court - The Court of cassation however holds that in matrimonial regime matters, the assumed will of the spouses should be sought after only if they made no express choice. By rejecting the character of matrimonial of the ketouba, the court of appeal misrepresented the nature of this contract, while it includes the amount of the nédounia (personal contribution of the wife) and provides that the ketouba includes all the mobile goods and the real estate of the husband. In addition it is expressly written in the ketouba that the marriage is formed under the regime of the Megorashim of Castile.
The court of appeal judgment is accordingly overturned.