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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
FRENCH VERSION / VERSION FRANÇAISE
I am regularly asked to advise French and international couples on the protective agreements available to them before they marry. They are often surprised to learn that it isn’t possible to draft a global prenuptial agreement which would be enforceable throughout the world, wherever the couple move to in the future.
If you are a French individual living in England (or considering a move here), it is essential to understand the differences between a French marriage contract (Contrat de mariage) and an English prenuptial agreement before deciding what kind of agreement you need. Because the ability to start a divorce process is based on either residence or domicile/nationality, couples need to consider where they are likely to live during the marriage when considering their options.
Drafting agreements which will be effective across borders can be tricky, because the English (common law) legal system talks a very different legal language to the French civil system, for example. I therefore work closely with French lawyers to draft agreements with a view to them being upheld and relevant in both England and France.
It can be a shock for French couples who have moved to England to learn that their French marriage contract and chosen matrimonial regime will not automatically be enforceable if they were to divorce in England. That said, recent case law has confirmed that “those who sign marriage contracts must understand that it is a significant step with very important consequences. These contracts will be enforced in France and will not simply be torn up in this jurisdiction.” Case law in England has developed such that an English Judge may have regard to the foreign agreement, although unlike the position in France, there will be other considerations as to how the assets are divided. The court’s priority in England will be to ensure an outcome which meets each spouse’s financial needs. If the effect of a marriage contract leaves one party in a precarious financial position, it will not be enforced in the same way it would be in a French divorce.
French couples moving to England should consider the need to enter into a post nuptial agreement if they are concerned about future divorce proceedings in this country.
Key differences between an English prenuptial (or postnuptial) agreement and a French marriage contract
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An English prenuptial agreement |
A French marriage contract |
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Involves a contract entered into by future spouses to determine their rights and obligations in the event of divorce |
Involves making a choice of matrimonial regime, which then operates from the day the parties get married |
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A comprehensive contract which can make provision for both capital claims and maintenance (income) claims on divorce |
Covers death and insolvency as well as divorce |
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The parties need to each have separate legal advice |
Made and entered into in front of a notary who can act for both parties |
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The English court will retain a discretion not to uphold the prenuptial agreement if it is unfair to hold the parties to it at the time of divorce |
Depending on the circumstances, the English court may take account of the marriage contract but there will be a consideration of all of the circumstances and financial positions of the parties. |
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In England, there are no matrimonial regimes and therefore no default regime |
In France, a default matrimonial regime will apply if there is no marriage contract (la communauté réduite aux acquêts) |
Which agreement do we need?
If you are a French national living in England and you are getting married, it is likely that you will need an English prenuptial agreement to protect assets in the event of divorce and not a simple French marriage contract. You will want to balance the costs of a prenuptial agreement (these agreements often run to many pages and are highly detailed agreements unlike the typical French marriage contract) against the level of assets you want to protect. I work in collaboration with French lawyers to draft contracts for clients in this situation so that the agreement gives as much protection as possible, in both England and France. We give careful consideration to clauses in the agreement which choose the jurisdiction for divorce and the law to be applied (which can be relevant if the agreement is later being enforced abroad).
Further information
If you have any questions about the issues raised in this blog and/or you are unsure as to which type of agreement you should consider, please contact a member of our family team.
You may also be interested in reading more about our Anglo French specialist family law services, including prenuptial and postnuptial agreements.
For previous blogs on this subject, please also see the following blogs, most of which are also available in French:
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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