Background
Mme [S] [T], an Algerian national, and M. [H] [M], holding both Algerian and French nationality, married on July 24, 2017 in Algeria. They were divorced by judgment on March 8, 2022 on grounds of accepted breakdown of the marriage.
On appeal to the Bordeaux Court of Appeal, Mme [T] challenged two issues: first, which law governed their matrimonial property regime, and second, the date on which the divorce took effect as to their property division. The Bordeaux court determined that Algerian law applied to the matrimonial regime and fixed the effective date as July 1, 2018—the date the spouses ceased cohabitation—applying Article 262-1 of the French Civil Code.
Mme [T] appealed to the Court of Cassation, arguing that because M. [M] held French nationality, French law’s principle of nationality primacy required treating him as French, not as sharing Algerian nationality with her. She also contended that the effective date of divorce regarding property must be governed by the applicable matrimonial law (Algerian), not French law.
The Court’s Holding
The Court of Cassation rejected the first ground of appeal. It held that while French law does recognize a principle of primacy of French nationality—meaning a person with dual French and foreign nationality is treated as French by French authorities—this principle does not override the Hague Convention of March 14, 1978 on the Law Applicable to Matrimonial Property Regimes. Under Article 4(2)(3) of that Convention, when spouses lack a common habitual residence after marriage, their matrimonial regime is governed by the law of their common nationality. The Court reasoned that the Convention’s drafters deliberately rejected any rule establishing precedence of one nationality over another, even in cases of dual nationality. Therefore, the common Algerian nationality governs the matrimonial regime, regardless that M. [M] also held French nationality. The Bordeaux court correctly applied Algerian law.
On the second ground, the Court identified a complex and unresolved conflict in European private international law: whether the date on which a divorce takes effect as to spouses’ property falls within the scope of the EU Rome III Regulation (which governs divorce but excludes “patrimonial effects of marriage”) or the Hague Convention (which governs matrimonial regimes). The Court noted competing policy considerations—divorce law should determine the divorce’s effects for coherence, yet matrimonial property rules may have been designed with specific dissolution dates in mind. Rather than decide this interpretive question itself, the Court referred a preliminary reference to the Court of Justice of the European Union, asking whether Article 1 of Rome III should be interpreted to include the effective date of divorce regarding property within its material scope.
Key Takeaways
- The principle of French nationality primacy does not prevent application of the Hague Convention’s common foreign nationality rule to matrimonial regimes, even when one spouse holds dual French and foreign nationality.
- The question of whether a divorce’s effective date on property division is governed by divorce law (Rome III) or matrimonial property law (Hague Convention) remains unresolved and has been referred to the EU Court of Justice.
- The case is suspended pending the preliminary ruling, with the matter returning to the Court of Cassation in December 2026.
Why It Matters
This decision clarifies that dual-national spouses in international divorce cases cannot rely on the forum state’s nationality primacy principle to avoid application of their common foreign nationality law to property division—a significant interpretation that harmonizes French law with the Hague Convention. More broadly, the referral exposes an interpretive gap in EU private international law between Rome III and the Hague Convention that affects how courts allocate authority over the temporal effects of divorce on property. The CJEU’s answer will determine whether future disputes over the effective date of property division fall under the law governing divorce or the law governing the matrimonial regime, with major implications for predictability in cross-border marital dissolutions.