Will my French marriage contract still apply if I divorce in England?

FRENCH VERSION / VERSION FRANCAISE

French couples living in England are often taken aback to learn that the French matrimonial regime they chose when they signed their French marriage contract might not be applied by English judges if they divorce in England.

Here are some commonly asked questions:

What is the default matrimonial property regime in France?

As a reminder, in France, a matrimonial property regime governs how property assets are divided. The default regime is the communauté réduite aux acquêts: the assets owned before the marriage and the ones received by gift or inheritance remain the personal property of each spouse; the assets acquired during the marriage and the spouses’ income are the property of both spouses and are divided into two equal parts in the event of a divorce or death.

 

Is it possible to opt out of this in France?

You can opt out of this regime by signing a marriage contract before a notaire and choosing an alternative regime:

• Separation de biens: the assets of the spouses remain separate.
• Communauté universelle: all the assets of the spouses are joint.
• Participation aux acquêts: for the duration of the marriage, this regime operates as if the spouses were married under the regime of separation of property; upon divorce, the notaire calculates the increase in the value of  each spouse’s assets during the marriage and the increase  is then divided equally.

 

Can I deal with maintenance or needs – based claims?

You cannot address maintenance or needs-based claims in your marriage contract as this is against public policy in France.

 

What if the regime I adopted no longer suits me and my family and I want to change it?

You may change or modify your matrimonial regime during the course of your marriage.

 

How relevant is my marriage contract if I divorce?

If you divorce in France, your marriage contract will have a huge impact as it will determine how the capital will be split between you and your spouse and it will always be enforced by French judges (except in very exceptional circumstances). However, if your divorce takes place in England, the situation might differ as English judges do not automatically enforce foreign marriage contracts.

 

Which factors will the English courts look at when considering whether a foreign marriage contract should be followed? 

When considering the appropriate financial order, the English courts must have regard to all the circumstances in the case and in particular the specific factors set out in section 25(2) of the Matrimonial Causes Act 1973, such as the spouses’ financial resources, needs, standard of living, ages. The existence of any marriage contract or agreement is not listed but it will be considered as part of the circumstances of the case and the weight given to any marriage contract will depend on the facts of the case.

Recent case law has provided helpful principles in relation to the enforcement of marriage contracts or agreements, starting in 2010 when, specifically dealing for the first time with this question, the English Supreme Court stated that judges 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” (Radmacher v Granatino [2010] UKSC 42).

Following this case, marriage contracts have been regularly upheld in circumstances in which the parties had not been not put under pressure to sign it and fully understood the aim and impact of the document that they were signing (Versteegh v Versteegh [2018] EWCA Civ 1050; CMX v EJX (French Marriage Contract) [2022] EWFC 136).  Facts such as the party challenging the contract having acted to ameliorate its effects during the marriage or a notaire explaining the contract and its consequences to the parties as it is his duty to do so in France can evidence whether or not the parties fully understood the document.

The English courts have held that independent legal advice and formal disclosure are desirable but not essential to enable them to exercise their discretion to uphold the marriage contract. This is particularly the case where the contract was signed in a country where it is commonplace (such like France), simply drafted and generally signed without legal advice or disclosure.

A judge might be more willing to apply a French marriage contract when the case has a strong French flavour, for example if the parties have lived in England for only a short time before the divorce petition was issued and owned properties in France (Z v Z (No.2) Financial Remedy: Marriage Contract) [2011] EWHC 2878 (Fam), [2012] 1 FLR 110) as opposed to parties who have lived in England their entire married life. This principle will apply to other countries as well.

Moreover, if the party challenging the contract is the one who initiated discussions about it before the wedding and/or their own family notaire was used, the English court is less likely to be persuaded that the marriage contract should not be applied upon divorce (CMX v EJX (French Marriage Contract) [2022] EWFC 136).

When is the English court less likely to uphold it?

Conversely, the English court is likely to decline to uphold a foreign marriage contract when the specific facts of the case do not allow the judge to find that the contract was entered into by both parties freely and with full understanding of its implications. It will usually require a combination of circumstances negating the party’s will and/or understanding, such as:

• The party challenging the contract did not understand that it would apply on divorce, they merely believed that it was entered into to protect them from third-party creditors and saw the contract for the first time 2 days before the wedding; there was no evidence that the notaire explained the contract; the parties did not get independent legal advice (Y v Y (Financial Remedy: Marriage Contract) [2014] EWHC 2920).
• The contract, which was in French, referred to some articles of the French Civil Code, of which the parties understood nothing (neither of them was French); the parties did not intend the agreement to govern their finances in the event of a divorce and believed that the contract was a legal requirement to be able to marry in Switzerland; they never met the lawyer who drafted the agreement and did not receive independent legal advice (Francis v Francis [2010] EWCA Civ 182).
• The contract was signed the day before the wedding (which, on its own, is not always an issue) and the parties had not discussed its content ahead of the signature; the party challenging the contract was very young, did not have prior knowledge of nuptial agreements and was "in a state of great turmoil" as she had just learnt about her father’s terminal illness (AD v BD [2020] EWHC 857 (Fam)).

 

Summary

The circumstances surrounding the conclusion of the agreement are very important. If you seek the enforcement of your French marriage contract in England, you will need to show that you and your spouse have entered into the agreement of your own free will and that you understood its implications. Duress or undue pressure could reduce the weight that is given to the contract and could even negate it completely.  Moreover, if the application of the French marriage contract would leave either spouse in what the court considers to be a predicament of real need and/or with an unfair financial settlement, it will not be upheld. As ever, it is important to seek specialist legal and strategic advice based on your own set of circumstances.

Further inforMation

If you have any questions regarding this blog, please contact a member in the Family and Divorce team.