Divorce is often a complex procedure, especially when the spouses have different nationalities or reside in different countries.
In a recent case, CMS assisted a British husband who lived in Monaco and then moved to Germany in his divorce proceedings against his Chinese wife, who lived in China with the couple's common child, who had been separated for more than three years.
In Monaco, the law does offer a solution when the spouses have been living separately and apart for three years: divorce on grounds of breakdown of cohabitation, under article 197-2° of the Civil Code.
The Monegasque courts have declared themselves competent to rule on the divorce and its consequences insofar as the last domicile of the spouses was in the Principality and one of the spouses was still resident there at the start of the proceedings (article 40.2 of the Code of Private International Law).
With regard to the consequences of the divorce for the couple's common child, the wife had argued that the Monegasque courts did not have jurisdiction pursuant to the Hague Convention of 19 October 1996, which would have given jurisdiction to the judicial authorities of the child's place of residence and therefore, in this case, to China.
However, as China is not a signatory to the Hague Convention of 19 October 1996, whose rules are not universal, this argument was rejected by the Monegasque judges, who therefore retained jurisdiction to rule on both the consequences of the divorce relating to the spouses and those relating to the common child.
With regard to the applicable law, the divorce was governed by Monegasque law pursuant to article 41 of the Code of Private International Law, which states that the law applicable to divorce before the Monegasque courts is Monegasque law unless the spouses request the application of the law of which they both have the common nationality, which was not the case here.
This decision has the merit of applying the rules of private international law to international divorce in practical terms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
