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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
FRENCH VERSION / VERSION FRANÇAISE
The French Pacte Civil de Solidarité (PACS) is a contract entered into by two unmarried adults, of the same or opposite sex, which allows them to plan their life together. Registration of the civil union between the partners takes place at the town hall. The PACS contract can also be drafted by a notary so that the clauses of their contract are bespoke to their family and financial situation.
For any clients with international connections (or who may move abroad), it is crucial to be aware that the French PACS may be recognised abroad, and have different financial consequences to those that would be applicable in France. In England & Wales, a validly entered into PACS will be recognised as an overseas relationship under the Civil Partnership Act 2004 (“CPA”) (as a result of the amendments made by regulations in 2019). There is no mechanism to register a PACS in England, but English law will treat a PACS, registered pursuant to French law, as a civil partnership provided the criteria are satisfied.
The consequences of this recognition of the French PACS under English law as a civil partnership, are wide-reaching. The effect under English law goes well beyond the rights that a cohabiting PACS couple would have under French law. The rights and obligations imposed under English civil partnership laws puts civil partners in the same position as married couples. Therefore, on the breakdown of the PACS, if English jurisdiction requirements are met, partners can make claims for all forms of financial relief in the same way as they could if they were married.
On dissolution, the possible financial claims include the following:
- Periodical payments (maintenance)
- Lump sums
- Transfer or sale of property
- Pension sharing
Aside from the financial claims, there are other differences between the English civil partnership and the French PACS:
|
Civil Partnership |
PACS |
|---|---|
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Debts remain the responsibility of the individual. |
Debts remain the responsibility of the individual, other than where the debt is linked to household expenses. |
|
There are no matrimonial regimes applicable. If the civil partnership ends, both partners have potential financial claims relating to the partnership, under a discretionary system of redistribution of assets. Orders can be made for ongoing maintenance payments and pension sharing. |
Partners can choose a matrimonial regime. If the PACS dates from before 1st January 2007, property is deemed to have been acquired by the partners to the extent of half each. If the PACS dates after 1st January 2007, the ‘séparation de biens’ regime applies. |
|
In case of death without a will, the surviving partner will inherit some or possibly all of the property. |
Absent a will, partners do not become heirs of one another. A will to this effect must be made. |
|
|
In case of death, the surviving partner can stay in the couple’s main residence for a year free of charge. |
|
Gifts to a civil partner are entirely exempt from inheritance tax. Partners can transfer assets to each other free of capital gains tax. |
No inheritance tax for partners. |
|
Civil partnership is dissolved through a formal court process. |
The PACS can be dissolved through a joint declaration of the partners, which they send to the registrar or notary; or through a unilateral decision by one of them. The partner who decides to put an end to the PACS has it notified (by bailiff) to the other. A copy is sent to the registrar or notary. |
There has not, to date, been any reported case law in England, which gives guidance on the dissolution of a French PACS. We do not therefore know the extent to which the English court would have consideration, in the exercise of its discretion, to the potential outcome had the partnership been dissolved in France. If the partners have entered into a contract in advance of the PACS, the effect of that contract may well be given weight in the same way as it would be a consideration in a divorce with a marriage contract. Please see our blog here for more information.
Clients and notaries must be aware of the potential for claims to be made in England if the partners move here or one of the couple is English domiciled. Given the potential significant differences between the financial outcome in France and England on dissolution of a French PACS, cross channel planning is essential, to avoid unintended consequences.
Further information
If you have any questions regarding this blog, please contact Claire Wood in our Family team.
About the author
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. Claire speaks French and has built up a significant Anglo-French family law practice. Over many years, she has acted for clients with French links on all aspects of their separation including the financial implications of cross border divorce, Anglo- French prenuptial agreements and the relocation of children.
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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