Information Note on the Court’s case-law No. 80
November 2005
D.D. v. France - 3/02
Judgment 8.11.2005 [Section II]
Article 5 of Protocol No. 7
Equality between spouses
Exequatur in France of a foreign unilateral divorce judgment: struck out
Facts: In 1960 the applicant married G., an Algerian national, in France. The couple went on to have six children, who are French nationals. In 1988 G. returned to Algeria, but the applicant refused to accompany him. He was ordered to pay maintenance to the applicant and a contribution to the upkeep of their youngest child, who was still a minor. In 1990 G. filed a petition for divorce alleging fault, which was dismissed by the French courts. In the meantime, he remarried in Algeria. Following proceedings in which the applicant was represented and her interests were protected, the Algerian courts granted G. a divorce at his “sole discretion”, as “the person vested with marital authority”, while ordering him to pay damages to the applicant for abuse of divorce rights (divorce abusif). At G.’s request, the French courts gave authority to execute the judgment on the ground that the unilateral nature of the repudiation and its effects had been mitigated by the fact that the wife had been given financial guarantees and had been able to assert her claims during the proceedings. The French courts dismissed an appeal by the applicant and a further appeal on points of law.
Law: Article 5 of Protocol No. 7: There had been a notable shift in recent times in the case‑law of the French Court of Cassation concerning the effects in France of repudiation. In judgments dated 17 February 2004, the Court of Cassation had found that “Even if it follows proper adversarial process, a decision which recognises unilateral repudiation by the husband without giving legal effect to any challenge by the wife is contrary to the principle of equality between spouses on the dissolution of a marriage, as recognised by Article 5 of Protocol No. 7 to the Convention, which France has undertaken to secure to everyone within its jurisdiction. Such a decision, therefore, also contravenes international ordre public.” In July 2005 the Court was informed by applicant’s counsel that the applicant had expressed a clear intention to withdraw her application. Having noted that there were no particular circumstances relating to respect for the human rights protected by the Convention requiring it to continue examining the application under Article 37(1) of the Convention, the Court decided unanimously to strike the case out of its list.
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This summary by the Registry does not bind the Court.
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