Mr. X. and Mrs. Y., married in Morocco in 1972, came in France, where their seven children were born. Ms Y. filed a petition for divorce before the family court judge of the TGI of Metz, on the 16th of April 2003 and became French by naturalization decree of 10 October 2003. The divorce was granted on the exclusive wrongs of the husband in application of French law. To make application of the French law, the Court of appeal of Metz took into consideration the nationality of the wife, on November 4, 2004, the day of his summons in divorce. The Court of cassation censures the position on January 12, 2011. It considers that it follows from article 3 of the Convention franco-marocaine du 10 août 1981 relative to the status of persons and the family that it is the responsibility of the French judge, in the case of rights for which the parties have not the free disposal, to implement, even ex officio, the rule of conflict of laws, and search, if necessary with the assistance of the parties, the content of the applicable foreign law. It then specifies that, under article 9 of the abovementioned Convention, the dissolution of marriage is pronounced according to the law of one of the two States in which the parties have the nationality at the date of the submission of the application or of the State where the spouses had their last common domicile, if they are not of the same nationality. Accordingly, the High court said that, in acting thus while the date of the filing of the divorce petition, both spouses were of moroccan nationality, the courts have violated the texts mentioned above.
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