Background
On April 28, 2019, the Court of El Eulma in Algeria granted the divorce of Mme [M] and M. [S]. Although she lived in France and was not compelled to proceed in Algeria, the wife herself had applied for the divorce under Article 54 of the Algerian Family Code. That provision permits a wife to separate from her husband without his consent by paying compensation known as “khol’â”; if the spouses disagree over the amount, the judge sets a sum that may not exceed the value of an equivalent dowry assessed on the judgment date.
On January 7, 2022, the husband applied to a French court for exequatur of the Algerian judgment. The Lyon Court of Appeal granted recognition on December 3, 2024. The wife appealed to the Court of Cassation, arguing that recognition violated French international public policy because Algerian law did not give spouses equal access to divorce and the husband—not the wife, for whom the rules were less favorable—was seeking exequatur.
The Court’s Holding
The Court of Cassation dismissed the appeal. It held that a foreign divorce granted under a law that denies one spouse equal access to divorce on grounds of sex may nevertheless be recognized in France when the disadvantaged spouse sought the divorce, was able to assert that spouse’s rights, and no other substantive or procedural violation of international public policy is established. The governing sources were Article 1(d) of the Franco-Algerian Convention of August 27, 1964, which conditions recognition on conformity with international public policy, and Article 5 of Protocol No. 7 to the European Convention on Human Rights, which guarantees spouses equal civil rights and responsibilities upon dissolution of marriage.
The Lyon court had found that the wife voluntarily chose to seek the Algerian divorce under Article 54, that there was no fraud, and that both parties had been able to present their cases. It also found that the financial awards against the husband substantially counterbalanced the compensation imposed on the wife. Those findings permitted the appellate court to conclude that recognizing the judgment did not violate international public policy, even though the husband later requested exequatur in France. The Court of Cassation therefore upheld recognition, ordered the wife to pay costs, and rejected both parties’ requests for additional litigation expenses.
Key Takeaways
- Sex-based inequality in the foreign law governing access to divorce does not automatically bar recognition of the resulting divorce in France.
- Recognition may be granted when the spouse disadvantaged by that law voluntarily sought the foreign divorce, could exercise procedural rights, and no other substantive or procedural public-policy violation is shown.
- The relevant inquiry includes the circumstances of the underlying divorce proceedings; recognition was not barred merely because the other spouse later applied for exequatur.
Why It Matters
The decision clarifies how French courts apply international public policy to foreign divorces based on sex-differentiated legal regimes. Courts must examine who sought the divorce, whether that choice was voluntary, whether both spouses could be heard, whether fraud occurred, and the practical financial consequences rather than treating the foreign law’s inequality as an invariably conclusive bar.
For cross-border family-law practitioners, the ruling also distinguishes the spouse who initiated the foreign divorce from the spouse who later seeks recognition in France. An exequatur application by the comparatively favored spouse does not itself defeat recognition when the underlying judgment was voluntarily obtained by the spouse subject to the less favorable rules.