Anglo French divorce – misconceptions and the Judgment of Paris

FRENCH VERSION / VERSION FRANÇAISE

Misconceptions and myths are commonplace in the world of cross border divorce. I am reminded of the “Judgment of Paris” painting, depicting the moment when a panel of eminent French wine critics, in a taste test, discovered they had ranked Californian wines higher than French.

A change of understanding is often a challenging journey for a French client who ends up in an English divorce process.  The two legal systems are a sea apart. When you add the cultural and language differences, confusion often results.

If you are a French national living in England, your partner is French or you are an English national living in France, you may well have a choice of divorce jurisdiction between France and England.  When you are deciding where to divorce, the financial outcome is only one consideration. In my many years’ experience of Anglo- French divorce cases, I come across many practical aspects of the divorce process in each jurisdiction that need to be understood and considered.

Here are some of the questions and misconceptions that regularly arise in my Anglo-French cases.

Will my marriage contract and matrimonial regime be relevant and enforced in an English divorce?

In England, we do not operate a system of matrimonial regimes, instead we have a discretionary approach where assets are redistributed equitably upon divorce. A foreign marriage contract will not be automatically enforced and upheld in English divorce proceedings.  Do not be complacent about the impact of your French contrat de mariage in English proceedings and, if you are living in England at the time of your marriage, take advice about the benefits of a prenuptial agreement. Remember also that the marriage contract only covers the division of assets and not the quantum of any prestation compensatoire payment.

 

What are the procedural differences between England and France?

Language is an obvious consideration; English divorce proceedings will be conducted in English (though you can have an interpreter when giving evidence at a final hearing). French proceedings are in French.  The cultural differences between the two jurisdictions are stark. For a start, there is an automatic right to appeal in French proceedings whereas in England, permission to appeal is required and the grounds for appeal are narrow.

A further significant difference is that, in English proceedings, finances and children issues are dealt with separately to the divorce itself whereas in French proceedings, the divorce, finances and children aspects are dealt with together. It is possible to obtain a divorce in England without organising the financial aspects of the divorce. In terms of timescale, for a French divorce this depends on the type of divorce. A divorce by mutual consent can take only a few months and a contentious divorce can take more than 2 years (plus right to appeal).  In England, the no fault divorce process takes 7 months but finances can take longer to resolve depending on complexity and the need for court proceedings. For more detail on procedural differences we have written our blog explaining further differences following the recent divorce law reforms.

 

How do I register my English prenuptial agreement in France?

If you are living in England and you want to protect assets in the event of divorce, it is likely that you will be better protected with an English prenuptial agreement rather than a French marriage contract.  Many French clients choose to get married in France and there are formalities to ensure the English prenup is registered in the livret de famille.  Instead of the usual certificate issued by the French notaire (when a contrat de mariage is signed), you will have to submit to the civil registrar a certificate signed by the English lawyers who prepared the prenuptial agreement.

 

How do I register my English divorce in France?

If your divorce was pronounced in England after 1 January 2021 (post Brexit), it must be verified in France by the Public Prosecutor of the Republic. The competent prosecutor will depend on where you got married. If your marriage was celebrated in France, it will be the civil registrar who conducted the marriage. If your marriage was celebrated abroad it, you must make your request to the Judicial Court of Nantes. You will need copies and translations of the Conditional Order (formerly Decree Nisi) and the Final Order (formerly Decree Absolute). You can find more information on the registration process and the required supporting documents on diplomatie.gouv.fr

There is no equivalent registration process required in England if you were divorced in France.

 

Do I have to pay the droit de partage (sharing tax) if I divorce in England but own assets in France?

Even though divorce proceedings are taking place in England, there may be formalities to implement in France, for example if you have shared properties/ companies in France that are to be transferred or sold as part of the divorce settlement.  As a matter of principle, if the division of assets between the spouses was the subject of a written deed, it gives rise to the payment of a droit de partage (sharing tax), calculated on the value of the shared net assets. It is crucial to consult a French notaire on the question of the droit de partage and consider carefully the payment of taxes in any financial settlement.  We work closely with specialist notaires who have experience of the implementation of cross border divorces in France.

 

Can the English judge share my French pension? Can the French judge share an English pension?

English courts have the power to make a pension sharing order in respect of an English pension, i.e. to share a pension on divorce in favour of the party with the smaller pension. However, judges cannot make pension sharing orders against French pensions. Other options are available to the English court when one spouse has a foreign pension to compensate the other, such as ordering the payment of a series of lump sums upon retirement by one spouse to the other.

The French retirement pension has two components:

• The basic French social security pension, which is counted in trimesters;
• The supplementary pension, which is counted in points.

French expats can continue contributing to both of them while working abroad and it is likely that where there is a French state pension, this will be an asset for consideration in and English divorce.  We will work with pension specialists to look at the potential value of French pensions (state and private) within English divorce proceedings.

There are circumstances in which the English court can make a pension sharing order against an English pension following an overseas divorce. This is a stand-alone application, made post-divorce and requires one party to be domiciled in England and Wales.

On the other hand, the French court cannot make orders to share/split pensions on divorce, but the retirement provision that each party has will be taken into account when calculating any compensatory maintenance (the “prestation compensatoire”).

 

What is the impact of child/spousal maintenance on my French taxes?

If you are a French tax resident paying child and/or spousal maintenance, you could be entitled to a tax deduction in France, subject to certain conditions. If they are met, the maintenance amount can potentially be fully or partly deducted from your taxable basis. Conversely, child and spousal maintenance are taxable if you are the receiving spouse. We work closely with French tax experts to consider these issues when they arise.

So, just as the French wine critics were wrong to rely on their preconceptions of the “best” wine makers, my advice is not to rely on what you think the position is, either in England or France, but to take detailed advice in each jurisdiction as to outcome, timelines, process and costs. The approach of the French courts to issues such as the valuation of share options and the reduction of asset values due to tax can be surprising and difficult to comprehend for the English lawyer, but this can make a huge difference to the potential outcome of the divorce. Clients are sensible to take into account not only the English/French court’s approach to the division of assets and marriage contracts, maintenance (whether capitalised or paid monthly) but also the likely (legal) costs in both jurisdictions, taxation and financial disclosure requirements. 

 

Further Information

If you have any questions about the topic of this blog,  please contact Claire Wood or a member of our team of family and divorce lawyers.

ABOUT THE AUTHOR

Claire Wood returned to Kingsley Napley as Legal Counsel in 2022, having previously worked at the firm from 2008- 2018. Claire is a family lawyer with over 15 years’ experience of advising clients on divorce or separation, financial settlement, prenuptial agreements and the arrangements for children.