If Montaigne liked to think that travel is youth, it is also true that they can help form a refined opinion in private international law,
The legal analysis conducted in Hong Kong made it possible to examine the question of the immutability of matrimonial agreements in private international law, particularly in the particular case of a Dutch citizen who married, without a marriage contract, to a Russian citizen, in France, who finds herself, a professional career doing, to divorce in Hong-Kong,
And inevitably, to approach the love of France before a judge of Hong Kong, is not necessarily easy.
In this case, it was indeed about the love of France.
Fortunately, the Hague Convention and the Rome Convention provide a number of answers.
Mr. X is a Dutch citizen, in love with France as his parents who live there for years he invests and buys an apartment on the « French Riviera »,
Afterwards, he meets Ms. Y, a Russian citizen,
He married in France, without a marriage contract, and lived there for several years, notably by buying, with his wife, a villa on the « French Riviera »,
Before being transferred to work in different parts of the world.
And finally, the couple separates while Mr. X was posted for only 6 months in Hong-Kong,
Ms. Y initiated divorce proceedings and seized the Hong Kong judge.
The French regime of the legal community, that is, of the community reduced to acquests, leads the judge to take into consideration only the property acquired during the marriage.
The Hong Kong law is clearly different on this point.
Hong Kong law suggests that the wife can integrate in the sharing apprehend both half of the common property but also the assets acquired by Mr. X before marriage.
The financial and patrimonial consequences are clearly different according to whether we apply French law or Hong Kong law,
In Hong Kong, while it is true that assets acquired before marriage remain in principle the exclusive property of the party who financed the purchase, the fact remains that if family assets are insufficient to meet the needs of the parties or children, and if the income from that property is mixed with the family’s assets and expenses, pre-marital assets may be considered part of the family’s assets for the purpose of division of property.
It is quite obvious that such a decision is totally contrary to the matrimonial regime of the community reduced to acquests in French law since it allows the judge of Hong Kong to apprehend personal assets acquired before the marriage and to integrate them in the partition to fill assets insufficient to meet the needs of the wife or children.
This would suggest that the Russian wife could express financial claims to the judge of Hong Kong on the estate of Mr. X, acquired before marriage.
For all that, private international law makes it possible to challenge this approach,
First of all, it should be recalled that private international law enshrines the principle of the immutability of matrimonial agreements, excluding the application of another right.
In fact, the Hague Convention of 14 March 1978 enshrines this principle and makes it very clear that, in the absence of a marriage contract, the law required by the spouses is indicated by the law of their marriage establishment,
For all purposes, it is necessary to repeat Article 4 of the Hague Convention, which states:
If the spouses have not, before the marriage, designated the law applicable to their matrimonial regime, this one is subjected to the internal law of the State in the territory of which they establish their first habitual residence after the marriage.
However, in the following cases, the matrimonial regime is subject to the internal law of the State of the common nationality of the spouses:
- where the declaration provided for in Article 5 has been made by that State and its effect is not excluded by paragraph 2 of that Article;
- when that State is not a Party to the Convention, its domestic law is applicable according to its private international law, and the spouses establish their first habitual residence after marriage:
(a) in a State which has made the declaration provided for in Article 5, or
(b) in a State which is not a Party to the Convention and whose private international law also prescribes the application of their national law;
- where the spouses do not establish in the territory of the same State their first habitual residence after the marriage.
In the absence of a habitual residence of the spouses in the territory of the same State and in the absence of a common nationality, their matrimonial property is subject to the internal law of the State with which, having regard to all the circumstances, it has the closest ties .
However, in this case of species, the spouses, both of different nationality, were married in France and had their first residence in France,
The Hague Convention is perfectly applicable,
They also bought a property in France and also gave birth in France while they were posted in a job abroad.
In such a way that the Hong Kong judge can not apply the Hong Kong law but must apply French law which prohibits the Hong Kong judge from considering any right of Mrs. Y to the marriage on the property of Monsieur,
Moreover, it is also necessary to apprehend the law applicable to the property of Mr. X, because again, private international law does not allow the judge of Hong Kong to create rights to Mrs. Y on the French property acquired in own of Mr. X.
In order to determine what is the law applicable to Mr X’s property situated in France and acquired before marriage, reference is made to Articles 7 and 9 of the 1991 Rome Convention on the law applicable to contractual obligations, in particular contracts concluded subsequently including a marriage.
Articles 3, 7 and 9 of the 1991 Rome Convention, which states in article 3 that « The contract shall be governed by the law chosen by the parties » should be taken over. This choice must be express or result of certain provisions of the contract or the circumstances of the case.
A Frenchman getting married in France and investing in France suggests that French law is applicable.
The text states clearly « By this choice, the parties can designate the law applicable to all or only part of their contract. »
It would have been advisable that a marriage contract be envisaged not only to determine the community regime and especially to determine which law would be applicable in particular the French law to the detriment of that of Hong Kong in case of divorce.
Article 3-3 states « The choice by the parties of a foreign law, whether or not accompanied by a foreign court, may not, where all other elements of the situation are localized at the time of such choice in a the only country to violate the provisions of the law of that country which does not permit derogations by contract, hereinafter referred to as « mandatory provisions ».
This text is in harmony with the Hague Convention concerning the strong ties of marriage mentioned above,
All would suggest that if the career has brought Mr. X to Hong Kong, place of separation, the fact remains that the judge of Hong Kong should apply French law, right of the first family home is specified that all the clues suggest that the initial choices were perfectly tied to France and that the divorce in Hong Kong results only from a career accident.
Article 7 of the 1991 Rome Convention on Police Laws provides:
« In the application, under this Convention, of the law of a particular country, the mandatory provisions of the law of another country with which the situation is closely related may be given effect, if and to the extent that, according to the law of the latter country, these provisions are applicable irrespective of the law governing the contract.
In deciding whether these mandatory provisions should be given effect, account shall be taken of their nature and purpose and of the consequences of their application or non-application. »
Article 9 (6) of the same Rome Convention states that: « Notwithstanding the provisions of the first four paragraphs of this Article, any contract relating to an immovable real right or a right of use of an immovable is subject to the mandatory rules of form of the law of the country where the immovable is located, provided that according to this law they apply regardless of the place of conclusion of the contract and the law governing the substance.
Everything suggests that for the real estate property of Mr. X, only French law is intended to apply, even if, in fine, in my opinion, the judge of Hong Kong, who is the judge of the last known marital home should be much more inclined to use Hong Kong law than French law,
And yet …
It is therefore intended to decide the circumstances of the divorce and to impose on Mr. X this legal problem in Hong Kong which suggests that if the assets acquired before the marriage are in principle considered as belonging to the party that financed the purchase, it the fact remains that if the family assets are insufficient to meet the needs of the wife or children and the income of his property is mixed with the assets and expenses of the family, he may consider that they are part of the assets. family for purposes of division of property.
This is totally contrary to the rules of French law.
Everything suggests the visa of the above-mentioned international provisions and according to the case law of private international law, that the French law of the regime of the community reduced to acquests would apply to the detriment of Hong Kong law.
Even if the judge of Hong Kong would fix a claim for maintenance that would be owed by Mr. X that would lead to the realization of the asset, the fact remains that he can not impose it.
Indeed, the Hong Kong judge has no right to personal property.
Not only would Hong Kong’s decision be contrary to private international law and the Hague Convention,
But in addition, this decision would be impossible to execute in France.
Understandably, the Hong Kong judge would simply be able to apprehend a claim but the latter would result from Hong Kong law to create a kind of bridge between family debt and exclusive property that one of the spouses acquired before the marriage.
While it is true that in Hong Kong law the principle of equal sharing prevails over the common heritage, there is the question of personal wealth acquired before marriage.
The decision to determine a claim on the basis of a prior estate is, in my opinion, contrary to the French provisions.
If the Hong Kong judge may consider that the concept of own property does not have to be taken into consideration, the fact remains that French law is opposable.
Accordingly, the abovementioned international provisions are applicable and come into conflict with the extended power of a judge who may, on the basis of Common Law law and their case-law, in particular the WHITE judgment, or even the NORRIS judgment, support the fact that personal real estate assets can be integrated.
Only French property acquired during the marriage can be shared 50/50.
And again, to the extent that he is not a marital home, he can also be the subject of discussions about possible rights to reward between spouses, precisely for the benefit of Mr. X who assured without fail the maintenance and all current, tax and banking expenses of the common good,
It is important to note that the NORRIS case confirms that the judge can ask the husband to repay the sums he has spent on the community so that even on a common good nothing would allow the judge from Hong Kong to come generate any right to reward or share on the property.
In any event and in this particular case, Mr. X could argue despite all the fact that all of the assets that were covered and financed by his personal funds.
Even if the Hong Kong judge considered that Mrs. Y had a right to this personal property, Mr. X would be entitled to proceed by way of compensation by reporting the expenses he had incurred and seeking a right of reward.
With regard to the common property acquired after the marriage, Mr. X would be entitled, even before Judge Hong Kong, to state that a large part of this property was settled by him and to claim a right of reward.
Mr. X is justified in considering that he can preserve his own property regardless of the view of the Hong Kong judge on this point.
Even though the Hong Kong judge considered that the property proper is to be reported in the context of sharing, the fact remains that in my opinion, it can not make this decision payable under French law.
Let us remember for all that any procedure for the purpose of carrying out the exequatur in French law of the decision of the Hong Kong judge requires a triple demonstration,
First, the decision must have been made regularly by the Hong Kong court,
Secondly, the decision must have been made in accordance with the rules of procedure in Hong Kong and be enforceable in Hong Kong,
Thirdly and above all, the decision must be in accordance with national public order, which may cause a difficulty in the light of the violation of the abovementioned international texts,
Moreover, it should be remembered that in terms of conflict of laws, Article 3 of the Civil Code stipulates that:
« The police and security laws oblige all those who live in the territory.
Buildings, even those owned by foreigners, are governed by French law.
The laws concerning the state and the capacity of the people govern the French, even residing in foreign country. »
As a consequence, in the light of the Hague Convention, the French conflict rule enshrines the principle of the immutability of matrimonial agreements imposes the application of French law, designated as the applicable law, the law desired by the spouses indicated by the law of the place of marriage and the law of the first domicile of the family,
The fact remains that all the choices made at the time of the marriage show that the interests are rather French and the Hong Kong judge could only apply French law.
If the Hong Kong judge chose to apply Hong Kong law, which in practice remains possible even though contrary to the aforementioned rules of private international law, the Russian wife could not have the decision of the Hong Kong judge enforced in France. could not consider executing judicially the real estate assets of Mr. X.
This trip also allowed a legal and judicial exchange in comparative Franco-Hong Kong law matrimonial regimes with the cabinet HALDANES extremely rewarding.
I warmly thank my excellent colleague, Mr Nicholas HEMENS, for his fine legal analysis and his great judicial experience, allowing us to apprehend a judicial strategy not on one, but on two countries.
I warmly thank Patricia LIU, whose charm is matched only by her high degree of expertise in family law and matrimonial property law, especially when the international scope of the case has given it some relief,
Article written by Maître Laurent LATAPIE,
Lawyer, Doctor in Law,