02 March 2021
Anglo French Family Law: Your questions answered
Droit de la famille anglo-français : Les réponses à vos questions
Where should I divorce?
French married couples or married individuals (for example a French lady married to an Englishman) who are habitually resident in England for the required period of time will be able to divorce in this jurisdiction. However, there may also be an option to divorce in France dependent on the circumstances. It is therefore vital to seek legal advice as soon as possible if you are contemplating divorce so that you can consider the following:
- In which country can I divorce?
- If I can divorce in both England and France, what are the advantages and disadvantages of divorcing in one country over the other?
- Will my Court Order be recognised and enforceable in the other jurisdiction?
In addition to this there will be other important factors to consider such as the differences in the respective procedures, whether there are nuptial agreements or marital contracts to take into account, the likely costs and duration of each procedure in each country. As previously stated, it is important to seek advice early on in the process so that you can make choices which are right for you.
Do the English and French courts take the same approach when dividing assets?
No, it is very different.
In France, the very act of marriage creates a property regime. Couples must elect a matrimonial property regime to govern their assets and, if they fail to do so, a default regime will be imposed upon them. The elected property regime is recorded in a French marital contract which is usually prepared and signed before a notary who acts for both parties. These property regimes provide a structure for the organisation and division of a couple’s assets. They set out how the assets should be treated on a divorce, as well as in circumstances of insolvency or death. Couples therefore know how their assets will be treated on divorce in France, effectively from the date of their marriage.
In contrast, England, operates a discretionary system. A judge has to take into account all of the circumstances of the case and the first consideration is given to the welfare of any children of the family under the age of 18. The overall objective of the Judge is to achieve a fair outcome. Fairness is determined by three principles known as “needs, sharing and compensation”. Whilst a couple may have entered into a nuptial agreement (which we cover below) they are often not binding and do not dictate the outcome upon divorce.
As such, in England, no two cases are the same and the outcome will very much depend on the particular facts of each case.
Are English nuptial agreements similar to French marital contracts?
The content of a French marital contract tends to be very different from an English Nuptial Agreement which is tailored to the specific requirements of the parties and can deal with issues such as the division of capital and payment of maintenance. A French marital contract can only deal with the former (division of capital).
Further, in England, foreign marital contracts and English nuptial agreements are not legally enforceable or automatically binding. However, the Supreme Court formulated a three part test in the landmark case of Radmacher and Granatino as follows:
“The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
In practice, this means that any couple entering into a nuptial agreement in England should adhere to the following guidelines:
- Ensure that there is no duress, or unconscionable pressure or significant imbalance in negotiating power;
- Ensure that each party has all of the information which is material to his or her decision to sign the agreement. The presence of financial disclosure and independent legal advice tend to be persuasive that this has been achieved but is not always necessary;
- Ensure the agreement is fair. There are many different strands to the concept of fairness but, in summary, the agreement must not leave one party in a predicament of real need whilst the other enjoys a sufficiency or more.
Most importantly, it is not possible to oust the jurisdiction of the English Court, which retains its discretion to uphold or reject a nuptial agreement. However, if these safeguards are met, then the couple should expect to be held to the terms of their agreement.
Will England recognise and uphold a French marital contract?
No, not automatically. As previously stated, it is not possible to oust the jurisdiction of the Court.
In the past, English courts have been cautious about the weight that they are willing to give to foreign marital contracts in general and not just those which are French. The reason is that these agreements tend to be much less formal than English prenuptial agreements. Most couples enter into them in the days preceding the wedding, without taking independent legal advice and often without seeing any disclosure.
However, the recent case of Versteegh v Versteegh  has made it easier for foreign marital contracts to be upheld in England as the Court recognises that these informalities are commonplace. In other words, if the procedural standards which apply to the country in which the agreement is drafted are met then it is arguable that the agreement should be upheld i.e. the lack of formality does not automatically mean that either party misunderstood the implications of the agreement. That said, it is still important that those wishing to rely upon a foreign marital agreement show that both parties fully understood the implications of entering into the agreement and that each had all of the information material to their decision. In those circumstances, the court is likely to give effect to the agreement unless it would lead to unfairness.
Ultimately, each case will very much depend upon its own particular facts and so there can never be any guarantees that a simple French marital contract will be enforced in England as it would in France in the context of a divorce. It is also important to note that the English court will always apply English law and not French law to the division of capital and payment of maintenance.
What happens if my partner wants to remain living in England but I want to return to France with the children?
On the assumption that both parents have parental responsibility for the children, it will only be possible for you and the children to move to France to live if the other parent consents in writing. If the other parent does not consent, then you will need to seek an order from the English Court for permission to relocate with your child. Not doing so would result in any removal from the jurisdiction being considered to be child abduction.
These types of application are often hugely stressful for both parents. One parent may be worried that the distance created by living in two different countries will result in less contact with their child and by default a less meaningful relationship. The other parent may feel worried that they will be forced to remain living in a country where they no longer want to be. It is therefore very important to seek advice and consider carefully whether such a move would genuinely be in the child’s best interests, and if so, be able to demonstrate and evidence those benefits. Care also needs to be taken to show that you will be able to support and facilitate a meaningful relationship between the parent who remains living in England and the child. It is therefore vital to seek advice early on if you are considering such a move.
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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.
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