Matrimonial Causes in French Law

Abstract

THE solutions of matrimonial causes in French private international law, built by case law onto the laconic provisions of the Civil Code and the Code of Civil Procedure, have completely changed during the last fifteen years.' Jurisdiction now lies on the double basis of nationality and of ordinary residence,2 but it does not necessarily carry application of the lex fori to the substance of the suit, which, on the contrary, often depends on the parties' personal laws. In the eighteenth century France consisted of some forty judicial provinces, whose laws, as similar yet as divergent as those of the modern U.S.A., had in common to remit matrimonial causes to the appropriate religious tribunals; international jurisdiction was founded on nationality, but there was no grave objection to its exercise on the basis of residence, because of the close similarity between domestic law and the more usual foreign laws. Then, in 1792, France was unified into a single judicial territory, having no central high court, and matrimonial causes were transferred into the lay courts. The Civil Code of 1804 solved the conflicts of laws by reference to nationality: most Frenchmen abroad and most aliens in France tend, whatever their intentions as to residence, either to change citizenship or to remain resolutely attached to the nationality and legal institutions of their countries of origin. A conflict rule based on nationality is easy to apply, but it can, when taken to its logical conclusions, withhold recognition from foreign judgments affecting citizens, deny relief to aliens, and be in difficulties with causes opposing citizens to aliens, and, indeed, it can only function smoothly if it enables citizens, wherever domiciled or resident, to exercise in their national courts, by sole reference to domestic law, all the family rights known to domestic law.