FRANCE Law and Practice Contributed by: Elodie Mulon, Emmanuelle Bonboire-Barthélémy and Louise Astruc Baciotti, Chauveau Mulon & Associés
Forum and Staying Proceedings A party can request a French court to stay pro - ceedings pending the decision of a foreign court on its jurisdiction. The legal basis, however, dif - fers depending on whether the states involved are two EU member states or an EU member state and a third state. Lis pendens between EU member states Article 20 of the Brussels IIb Regulation (recast) stipulates that if two divorce/legal separation proceedings have been initiated between the same parties, the secondly seised court auto - matically suspends its proceedings until the jurisdiction of the firstly seised court is estab - lished. Once the jurisdiction of the firstly seised court is established, the secondly seised court must defer to the firstly seised court. Lis pendens between France and a third state In the absence of bilateral agreements govern - ing lis pendens, Article 100 of the Code of Civil Procedure will apply. The existence of a situation of lis pendens thus requires three elements: • first, at the time the French court is seised, another process must already be pending before the foreign judge; • second, the lis pendens situation necessi - tates that the courts are seised with the same dispute, which presupposes the triple identity of parties, cause and subject matter; and • third, it is essential that both French and for - eign courts have jurisdiction. If the same dispute is pending before two equally competent courts of the same level, the court secondly seised must defer if either party requests this, or of its own accord. The factor considered by French courts is there - fore chronological. Hence, the date of seising
jurisdictional privilege, allowing French courts to have jurisdiction if the petitioner or the defendant is a French national. These provisions do not apply to the dissolu - tion of the French civil partnership ( pacte de solidarité civile ), as its dissolution occurs outside any judicial process (see 1.1 Grounds, Timeline, Service and Process – Grounds for Civil Part - nership Dissolution). Domicile, Residence and Nationality In France, the concepts of habitual residence and nationality are crucial for determining French court jurisdiction in divorce/legal separation matters, as these are the connecting factors favoured by European regulations. • Habitual residence – French courts consider the concept of habitual residence as an “autonomous concept of European Union law”. They apply the case law of the Court of Justice of the EU regarding the definition of a person’s habitual residence under European regulations. Therefore, the Court of Cassa - tion has defined “habitual residence” as “the place where the individual has established, with the intention of giving it a stable charac - ter, the permanent centre of their interests”. • Nationality – a person’s nationality is assessed according to French law criteria. • Domicile – French law does not recognise the notion of domicile. Contestation of Jurisdiction The jurisdiction of French courts can be con - tested by either party or by the judge. The lack of jurisdiction of the court must be raised, under penalty of inadmissibility, before any defence on the merits or an objection.
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