Custody of children in international divorce: applicable law and competent court
As families become increasingly mobile on an international scale, family law matters such as divorce, child custody in cross-border divorce and alimony are no longer purely national matters. When a dispute involves several countries, the question of which rules apply and which court has jurisdiction becomes crucial. This article looks at international and bilateral conventions, as well as the rules of conflict of jurisdiction in international family law.
International Conventions in Family Law
International conventions play a fundamental role in harmonizing standards between different states. One of the most important family law conventions is the 1980 Hague Convention, which deals with the civil aspects of international child abduction. This convention aims to ensure the immediate return of children unlawfully removed or retained across borders, restoring their previous situation and preventing international parental abductions.
Bilateral conventions: a complementary framework
In addition to multilateral conventions, bilateral agreements are often concluded between two States to deal with specific family issues. These bilateral conventions facilitate cooperation and ensure reciprocal recognition of judicial decisions, whether on divorce, child custody or maintenance obligations. For example, France has signed bilateral agreements with countries such as Algeria, Morocco and Canada, ensuring better coordination in cross-border cases.
These bilateral agreements are particularly important when international conventions do not apply, or when relations between certain States are not covered by multilateral instruments such as Brussels II ter or The Hague.
Conflict of Jurisdiction Rules
Conflicts of jurisdiction arise when a case involves several countries, each of which could be competent to deal with it. The place of habitual residence is generally the main criterion for determining jurisdiction, particularly in divorce and child custody cases. However, this criterion is refined by the rules of international conventions.
The Brussels II ter Regulation lays down precise rules to avoid conflicts of jurisdiction. For example, when a divorce application is lodged in two EU countries, the “first seized” principle applies: the court of the country first seized will generally be the one to decide the case, provided that jurisdiction is well founded.
In the case of international child abduction, the 1980 Hague Convention gives jurisdiction to the court of the country in which the child resided prior to the wrongful removal. This avoids protracted disputes over which court has jurisdiction.
Which court has jurisdiction?
In international family law, jurisdiction depends primarily on the parties' place of habitual residence, but exceptions may exist depending on the conventions in force. The applicable law may also vary according to the nationality of the parties or their place of residence, and bilateral agreements may influence the choice of competent court.
Under Brussels II ter, the courts of EU member states are required to cooperate to avoid conflicting decisions and facilitate the enforcement of judgments in cross-border cases. Moreover, in the case of international abduction, the Hague rules ensure that the child's country of origin generally retains jurisdiction.
Conclusion
International family law is a complex discipline, involving numerous conventions and rules designed to resolve conflicts of jurisdiction between states. Judicial jurisdiction, applicable conventions and rules on recognition of decisions must be mastered to ensure the efficient management of family matters involving several countries. If you are involved in a cross-border situation concerning divorce, child custody or parental abduction, we strongly recommend that you consult a lawyer specialized in international family law.
FONTAINE-BERIOT-AVOCATS, avocat à Aix en Provence : CLIQUER
21 février 2025