(Dec. 3, 2009) In a decision rendered on November 4, 2009, the Cour de Cassation, France's Supreme Court for civil and criminal decisions, denied recognition in France of an Islamic divorce obtained in Morocco. The spouses, both citizens of Morocco, were married in Morocco in 1975 and reside in France. The wife filed for divorce before the competent French court, and her husband tried to stop the French proceedings by invoking a divorce judgment rendered on October 4, 2007, by the Court of First Instance of Khemisset (Morocco). The Cour de Cassation let the decision of the Court of Appeal of Caen stand; it had found that the Moroccan divorce judgment could not be recognized in France and the wife could proceed with her case before the French Court of General Instance.
The Cour de Cassation held that
whereas the decision of a foreign court taking note of a unilateral repudiation by the husband without giving any legal effect to the eventual opposition of the wife and denying the competent authority [i.e., the Moroccan judge] of any power other than the power to handle the financial consequences of the breaking of the matrimonial bond is contrary to the principle of equality of the spouses during dissolution of the marriage, as stated in article 5 of Protocol No. VII of November 22, 1984, to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which France has agreed to guarantee to any person under its jurisdiction, and, therefore, contrary to international law. (Legifrance, http://www.legifrance.gouv.f
r/ [Click on Jurisprudence: judiciaire, search using Cour de Cassation & case no. 08-20574].)
The Court noted that under articles 78 to 93 of the Moroccan Family Code, published on February 3, 2004, the husband may obtain a divorce without his wife having the right to oppose such a demand, that the role of the Moroccan judge is limited to determining the consequences of the separation once a conciliation attempt has failed, and that a wife may file a similar divorce request only if authorized by her husband. (Id).