Jurisdiction Considerations in French/U.S. Divorce

The advantages found in one jurisdiction over another could stem, for example, from the level of maintenance typically awarded or the conflict of law rules used by such jurisdiction to determine the matrimonial property regime (separation of assets, separation of assets with equitable distribution, civil law community property, etc.). In Europe, the race for jurisdiction is so neck-and-neck that counsel can be found liable if the court clerk fails to specify the hour the petition was filed in addition to the date. Cour de cassation [French Supreme Court], 1st civil chamber, 11 June 2008, No. 06-20.042. Being the first to file enables the most diligent spouse to invoke the rule of lis alibi pendens, which allows the court petitioned second to refuse to exercise jurisdiction when facing parallel litigation in another country. This refusal is mandatory for courts of Member States of the European Union when the court petitioned first is situated in a fellow Member State. (Article 19 of the Brussels II bis Regulation of November 27th 2003, clearly states that “where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seized [petitioned] shall of its own motion stay its proceedings until such time as the jurisdiction of the court fist seized is established.”)