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INSTITUTE OF GLOBAL LAW

 

Institute of Global Law

French Legal News - Private International Law

On 5 January 2005, the Government issued a decree authorising publication in the Journal official of Protocols delegating power to the European Court of Justice to resolve litigation and to answer preliminary questions relating to the interpretation of the Rome Convention of 19 June 1980 on contractual obligations.

On 17 February 2004, the First Civil Section of the Cour de cassation held in 5 cases against the recognition of religious unilateral divorce decrees obtained (by husbands) in Morocco and Algeria. The basis for non-recognition is twofold: firstly, the principle of equality between husband and wife, as guaranteed by article 5 of Protocol Number 7 of the European Convention on Human Rights, and secondly, the fact that the husband resides in France. Following a decision of the Court de cassation on 1 June 1994, Protocol Number 7 has been used to justify the courts’ refusal to recognise such repudiations. There has, however, been some debate amongst commentators as to whether unilateral repudiations should be automatically held contrary to the principle of equality, and therefore denied recognition, or whether repudiations that satisfy certain procedural requirements (granting the wife the opportunity to appear in the proceedings, the absence of fraud and financial compensation) could be recognised. The contrasting decisions of the First Civil Section of the Cour de cassation of 3 July 2001 and 12 July 2001 were an indication in favour of the latter (more flexible) approach, which has now been confirmed. However, in the present five cases, the factors put forward by the Cour de cassation concern not procedural, but geographical requirements (ordre public de proximité). Residence of the husband, or possibly of the wife, in France is an obstacle to the recognition of repudiations obtained in the country of origin.



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