9 Which is the competent authority to turn to in cases of disputes and other legal issues?

The Brussels II bis Regulation provides rules of direct jurisdiction for proceedings relating to divorce, judicial separation and marriage annulment. The regulation does not cover disputes relating solely to the property consequences of marriage. Judges are bound to automatically apply rules of jurisdiction arising from this regulation when determining the jurisdiction of French courts before applying the national rules of jurisdiction.

The Brussels II bis Regulation affords plaintiffs the choice between two major criteria to determine jurisdiction: habitual residence (Art. 3-1 (a) ) or nationality (art. 3-1 (n) ). Thus, plaintiffs may choose between seven cases of jurisdiction (Art. 1070 C.P.C. ).

The French judge may also be competent where one of the parties in the dispute is a French national (Art. 14 and 15 CC).

For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.

This Regulation provides that the competent authorities will be as follows:

- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).

- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.

- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:

  • of the spouses’ common habitual residence at the time the court is seised; or failing that
  • of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
  • of the habitual residence of the respondent; or failing that
  • of the spouses’ common nationality.

With the exception of any litigation, notaries in France are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract or a choice of law agreement.