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Published on Tuesday 28/07/2015

In a judgment of 8 July 2015, No. 14-17880, the 1st Civil Chamber of the Cour de cassation (French Supreme Court)  points out that under Articles 8 and 13 of the Hague Protocol of 23 November 2007, the parties may choose the law that will be applicable to the compensatory allowance equated to a maintenance obligation under the above provisions, as it is not contrary to international public policy of the State in which the court has been seized. She reminded that the removal of the compensatory allowance is contrary to French international public policy.


In this case, a married couple in Germany, domiciled in France, had included in their marriage contract a clause excluding any compensatory allowance under German law or any other law, in case of divorce. Then the couple domiciled in France, comes to divorce before the French courts. The wife applied for a compensatory allowance. The Court of Appeal of Metz has dismissed the application considering that the claimant had waived in advance any compensatory allowance.

The Cour de Cassation reversed  the decision considering that if the spouses had a flexibility to designate the country's law applicable to that maintenance obligation and therefore the compensatory allowance, however, it was necessary to apply in the matter, the requirements of conflict of laws dictated by the provisions of the Protocol of 23 November 2007 mentioned above. Therefore, the removal of the compensatory allowance shall be deemed to be contrary to international public order of the country of the court (i.e France).


This case-law invites future international couples too often unaware of the conflict of law rules both in their property relations that in the event of divorce, must always be aware of the complexity of the matter and the issues at stake by inviting them to establish a preliminary feasibility study in close collaboration with the councils of the various countries involved in the operation, before drafting a marriage covenant in any capacity, and at the cost of  later difficulties, whose resolution will be infinitely more costly than the study prior and the establishment of an appropriate agreement.


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Tags : Contract International couple Expatriation Divorce

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