Anglo French prenuptial agreements – the myths of cross channel protection and marriage contracts

15 March 2022

I am regularly asked to advise French and international couples on the protective agreements available to them before they marry and whether they need an English or French drafted agreement.   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 they move to in the future.  It is all the more surprising to French clients who learn that their trusted and routine contrat de mariage is not automatically enforceable in divorce proceedings in England.

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 and where assets are based when considering their options. 

Drafting agreements which will be effective across the channel presents challenges, because the English (common law) legal system talks a very different legal language to the French civil system.  I work closely with French lawyers and notaires to draft agreements with a view to them being upheld and relevant in either England or 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 divorce in England.  An English Judge may have absolutely no regard for the foreign agreement and it may have no bearing on the divorce outcome, including the financial settlement.  French couples moving to England, who have a marriage contract, should consider converting that contract into a post nuptial agreement if they are concerned about the possibility of future divorce proceedings in this country.

Key differences between an English prenuptial (or postnuptial) agreement and a French marriage contract

  An English prenuptial agreement A French marriage contract
What is it? Involves a detailed contract entered into by future spouses to determine their rights and obligations in the event of divorce. An English agreement can cover both the division of assets (patrimoine) and claims for maintenance (prestation compensatoire or pension alimentaire mensuelle).
Involves making a choice of matrimonial regime, which then operates from the day the parties get married.  It is binding and French courts will always uphold the marriage contract at the time of divorce.

The three main matrimonial regimes (other than the default regime) are:
 
- Separation de biens: the assets of the spouses remain separate.
 
- Communauté universelle: all the assets of the spouses are common.
 
- 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 notary calculates the increase to each spouse during the marriage and it is then divided equally.
What does it cover? A comprehensive pre or post nuptial agreement  can make provision for both capital claims and maintenance (income) claims on divorce. Sets the rules applicable to the property of the spouses. The document covers death, debts and insolvency as well as divorce.
What advice is needed? The parties need to each have separate legal advice from family lawyers on the impact of the agreement on their rights. Made and entered into in front of a notary who can act for both parties. There is a standard fee payable (notary fee as well as procedural and publicity costs). The contrat is recorded in the livret de famille.
How will the English Court treat the agreement? The English court will retain a discretion to review the parties’ agreement.  Judge made law has confirmed that “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”. Depending on the circumstances, the English court may take account of the marriage contract but it is unlikely to strictly hold the parties to its consequences.
What about matrimonial regimes? 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). The assets owned before the marriage 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.
Spouses may change or modify their matrimonial regime.

Which agreement do we need?

If you are a French national living in England and you have assets you wish to protect (for example, family inheritance, donations or business assets)   it is likely that you will need a comprehensive 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 will decide together which is to be the “lead” jurisdiction for drafting. We give careful consideration to clauses in the agreement which choose the jurisdiction for divorce and the law to be applied.

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.

 

 

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