Report No. 65
IV. French Law
17.16. Public policy in France.-
In French law, the corresponding concept is "ordre public". The concept "ordre public" is applied, in private international law, to prevent undesirable results from a too objective an "international" approach. To start with, there is a system (more or less clearly defined), of choice of law and other conflicts principles. But this system is liable to be checked by public policy or "ordre public". The effect of the check is to prevent the application of foreign law and to substitute French law.
Public policy may be said to operate in two ways in private international law1 (a) it may ignore foreign prohibitions which are distasteful to the lex fori;2 (b) it may introduce objections and prohibitions not contained in the foreign law. In illustration of (b), it may be stated that in practice, cases before the French courts may be decided by French law, even if the personal law of the parties is derived from another system. This could take place when the foreign solution shocks French conceptions of morality or justice; for example, a foreign law which permitted the marriage of a brother and sister, or recognised slavery as a legal status, would not be recognised in France.
1. See Niboyet Traite de Dreoit International Private Franchise, (Vol. V, 1948), section 1492, referred to in (1961) Can Bar Rev 307.
2. Cf. Sottomver v. De Barros, (No. 2) (1879) 5 PD 94 as to English Law.
17.17. French cases.-
Specific French ruling as to the non-recognition of foreign divorces are not available in the context of "public ordre". However, it would appear that French practice makes a distinction between (i) cases where rights have been already acquired by foreigners and only enforcement or recognition is sought in France, and (ii) cases where the suing party directly seeks to acquire rights in France in accordance with the provisions of a foreign legal system. In the former case the French Courts are ready to give a wider recognition to the foreign judgment, than in the latter case. Thus, although the French courts will apply the divorce law of the nationality of the parties, "public ordre" will not permit a decree to be granted by a French court on grounds not permitted by domestic French law.
But a decree of divorce obtained by foreigners abroad would be upheld in France, even though the ground of divorce is not one on which a French court would grant divorce. Again, as regards the ceremony of marriage, French law permits foreign nationals marrying in France to enjoy the benefits of their own domestic law, except where the foreign law ignores vital social considerations-as for example, minimum age. Again, a marriage celebrated between foreigners abroad in accordance with the foreign law, between an uncle and niece which, if solemnised in France, is permitted only by special dispensation, would be upheld without the safeguard of the dispensation, but a marriage between brother and sister would be regarded as void under all circumstances.1
A French court would reject a German judgment ordering a putative father to maintain his child, as being contrary to "public ordre", since the judgment could be used to found a claim of paternity under the Civil Code which could not otherwise be maintained2.
1. Lloyd Public Policy, (1953), pp. 80-82.
2. Lloyd Public Policy, (1963), pp. 96-97.