Extract
[...] Regarding other rules, however, nothing is provided for by the regulation. This is why the solution of the 2024 ruling, like the Cressot ruling, seems threatened. For part of the doctrine, Article 220 of the Civil Code could however still be qualified as a law of the court. All the more so since the legislator of other Member States, such as the Netherlands, has expressly qualified similar provisions as laws of the court. Despite this, caution is still required, because although there may be a consensus among Member States, such a qualification can only be maintained subject to the control of the Court of Justice of the European Union. [...]
[...] In principle, one must apply the law of the common nationality of the two spouses. In default, the applicable law is that of the common domicile of the spouses and, in default, the law of the forum. However, the 2024 judgment makes abstraction of these conflict of laws rules to apply the primary regime to all spouses residing in France. This is a classic derogation, already affirmed by the Cressot judgment of 1987 (Civ. 1ère October 1987, n° 85-18.877). However, the reassertion of this derogation by repeating word for word the terms of the Cressot judgment has only revived the doctrinal criticisms made in 1987. [...]
[...] The High Jurisdiction responds positively and rejects the appeal on this point. In fact, it considers that, unless there is a contrary international convention, the primary French regime is a police law and is therefore territorially applicable. Thus, the spouses living in France during the disputed period, French law is applicable. It will be noted that the judges of the Quai de l'Horloge confirm the status of the primary French regime as a police law but that this solution seems threatened by European law (II.). [...]
[...] 22-17.231 The judgment rendered on June by the first civil chamber of the Court of Cassation is about the application of the primary French regime to spouses subject to a foreign matrimonial regime. In this case, two spouses married in Syria in 1992, before settling in France. In 2014, the wife concluded a rental agreement for a dwelling constituting the common home of the spouses. They left the premises in 2018, leaving unpaid rents, and divorced in 2019. The landlord then sues the two spouses for payment of the rents. [...]
[...] However, a police law must in principle allow for the protection of public interests. But, at first glance, the primary regime mainly allows for the protection of private interests. For example, household solidarity allows creditors to be paid more easily. Nevertheless, this qualification may seem justified by the protection of the economic organization. If creditors know easily the applicable legal regime, they will conclude more easily contracts with the spouses, which will feed the state's economy. B. A classic derogation from the Rivière-Tarwid jurisprudence By qualifying the primary regime as a police law, the Court of Cassation derogates from the Rivière-Tarwid jurisprudence (Civ. [...]
