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New Caledonia: Legal Pluralism and Diversity of Interpretation of Fundamental Rights (Common Law, Customary Law, Reservation Related to Indigenous Rights): The Example of New Caledonia
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- By Christine Bidaud-Garon, Associate Professor and Deputy Director of the Research Centre for Law and Economics, University of New Caledonia
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2019
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 16 September 2019, pp 219-224
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- Chapter
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Summary
The subject of this chapter is not specific to a territory. But it is extremely complex, and it is easier to consider it through the example of New Caledonia. To understand this complexity the very special status of New Caledonia must first be explained. It is a Pacific island a few hours by plane from New Zealand and Australia, but it is a French territory. However, New Caledonia has a sui generis legal status. Its operation is regulated directly by the French Constitution and by an organic law of 19 March 1999. It is still a part of France, but it is autonomous in many respects and it will be more and more autonomous as a gradual transfer of state powers to New Caledonia is underway. Since 1 July 2013, New Caledonia is especially competent in civil law, in commercial law and in the rules governing civil status. The Caledonian Congress is competent to enact its own laws, which are called country laws, in almost all areas of civil law. Thus, reforms passed by the French national parliament since 1 July 2013 do not apply in New Caledonia. In other words, New Caledonia is still part of the French territory but does not always have the same legislation as the rest of France.
Furthermore, this singularity is not restrained to a difference in civil law. Another item must also be taken into account in order to understand the legal difficulties existing in New Caledonia. Two personal statuses exist and each one is governed by a different legal corpus. The first one is called ordinary civil status and is regulated by common civil law. The second one is called customary civil status and is regulated by the Kanak custom.
This notion of status should not be understood in a strict sense. When a person has the customary civil status, all of his/her ‘civil rights’ are governed by the Kanak custom. Not only is the personal status such as marriage, parentage, divorce concerned … but the entire status which includes inheritance, property, contracts … in short, everything.
Legal pluralism therefore exists at different levels in New Caledonia. First, at the level of civil law. Civil law is not always the same as in metropolitan France, it depends on the reforms which have been adopted in metropolitan France and New Caledonia since 1 July 2013.
France: A Chronicle of French Family Law
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- By Christine Bidaud-Garon, Associate Professor and Deputy Director of the Research Centre for Law and Economics, University of New Caledonia, Hugues Fulchiron, Professor, Law School, Université Jean Moulin Lyon 3, France, Bastien Baret, PhD Student, Family Law Centre, Université Jean Moulin Lyon 3, France, Aurore Camuzat, PhD student in Law, Family Law Centre, Université Jean Moulin Lyon 3, France, Eric Fongaro, Professor, College of Law, Political Science, Economics & Management, Université de Bordeaux, France, Guillaume Millerioux, PhD Student, Family Law Centre, Université Jean Moulin Lyon 3, France
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2019
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 16 September 2019, pp 113-128
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- Chapter
- Export citation
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Summary
INHERITANCE RESERVE AND INTERNATIONAL PUBLIC POLICY
On 27 September 2017, the French Court of Cassation gave two important decisions about inheritance reserve and international public policy. Inheritance reserve is an important concept in French inheritance law. Article 912 of the French Civil code states that:
The reserved portion is that part of the assets and rights of the succession whose devolution, free of charges, legislation assures to certain heirs, called forced heirs, if they are called to the succession and if they accept.
International public policy is a well-known concept in international private law. It allows for the exclusion of foreign law as designated by the French conflict of laws rule, when this law violates the fundamental values of French law.
In recent years, scholars have been wondering whether the inheritance reserve was part of international public policy, especially since the EU ‘successions’ regulation entered into force on 17 August 2015. In this regulation, the conflict of laws rule designates the law of the deceased's last habitual residence, though the deceased may also choose the law applicable to his/her succession. In some common law countries, especially, the law does not contain any inheritance reserve. When the French conflict of laws rule designates the law of a common law country, must the law be ignored if it does not contain an inheritance reserve?
In both decisions of 27 September 2017, the descendants were famous composers: Maurice Jarre and Michel Colombier. Both had lived in France. They had had families and children in France, but later they divorced and moved away to live in California. They married again in this state and had other children. Their estates were composed of movable assets. So, the applicable estate law including any forced share was the Californian one. But the inheritance reserve doesn't exist in California, and the deceased had written wills to transfer their properties to their second wives and to the children from these second families. It was in order to get their inheritance reserve that the children of the first marriages brought their cases before the French judges.
In both cases, the French Court of Cassation affirmed ‘the foreign law, designated by the French conflict of laws rule, is not contrary to the French international public policy’.