Recognition as of right
Usually, foreign divorce Judgements do not need to be recognized through a long and complex procedure. Most of the time, recognized as of right since they deal with personal status matters.
Therefore, a foreign divorce judgment will be recognized as of right through a simple procedure called « requête aux fins de constatation de la force exécutoire” (application for a recognition declaration). The French judge will recognize the foreign judgment without examining its content.
However it will be mandatory to use the exequatur procedure if the foreign Judgment has to be enforced, meaning that part of the Judgment has to deal with assets of one of the spouses. For example, it will be the case if the terms of the foreign judgment awarding spousal compensation are not respected by one of the parties. The other party will have to force the other to pay what it owes. In this case, a French judge will need to append to the decision an order for its enforcement.
The exequatur procedure will also be necessary if the foreign judgment deals with real estate on French territory. Indeed, given that French law is mandatory in respect to real estate on its territory, any judgment with effects on this area will be controlled by the judge and not simply recognized.
Applicable provisions
A number of multilateral or bilateral treaties have been ratified on this particular area.
In Europe for instance, article 21 of E.U regulation n°2201-2003 of November 27th, 2003 provides that “A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required”.
However, a divorce judgment, or any other similar decision will not be recognized as of right if:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defense unless it is determined that the respondent has accepted the judgment unequivocally;
(c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or
(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
If the foreign Judgment has to be recognized through the exequatur process or in the absence of an international treaty, the provisions of article 509 of the French code of civil procedure will be applicable. Article 509 has been recently re-interpreted in 2007 by the Cour de cassation (French Supreme Court) in the famous case Cornelissen. The French judge will only verify that:
- The foreign Court has proper jurisdiction under French law,
- The foreign Judgment complies with French procedural and substantive public policies,
- The foreign Judgment was rendered without fraudulent forum shopping (evasion of the law),
As a French-American attorney with extensive experience in private international law, I provide my clients with high quality skills regarding all matters of private international law and in particular with recognition and enforcement procedures.