Anglo French prenuptial agreements – the myths of cross channel protection and the global prenup?

14 August 2017

Version Fran&cecedil;aisFRENCH 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 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 were to 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 should consider entering into a post nuptial agreement if they are concerned about future possible 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

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

A comprehensive contract which can provision for both capital claims and maintenance (income) claims on divorce

Covers death and insolvency as well as divorce

The parties need to each have separate legal advice

Made and entered into in front of a notary who can act for both parties

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 it is unlikely to strictly hold the parties to its consequences

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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Questions Fréquentes

Les questions ci-dessous exposent certaines des différences les plus importantes entre l'Angleterre et la France pour les affaires de droit de la famille relatives aux finances et aux enfants.

Litiges Franco-Britanniques Impliquant Des Enfants

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Divorce Et Séparations Des Couples Franco-Britanniques

Les conséquences financières sont très différentes entre le droit français (ou d'autres pays francophones) et le droit anglais en cas de séparation ou de divorce. Il revient souvent aux clients de choisir la juridiction pour leur affaire, et c'est pourquoi, en fonction du résultat recherché, il est crucial de solliciter des conseils juridiques aussi tôt que possible.

Contrats Prénuptiaux Franco-Britanniques

Le droit d'Angleterre et du pays de Galles ayant des mécanismes très différents du droit de la famille français, il est important d'obtenir des conseils sur la valeur que revêt un contrat de mariage français en Angleterre.

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Anglo French FAQ

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In cases where there are English elements to the situation, we advise clients on a successful strategy for negotiation or before the English court. In situations where the children are French resident, we can refer you to a leading French family lawyer so that any French proceedings can be handled effectively for you.

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There are important differences in the financial outcomes between English and French law (or the laws of other Francophone countries) in situations of separation or divorce. Clients often have a choice of where to bring proceedings, so seeking early advice is often of vital importance to the outcome.

Anglo French Prenuptial Agreements

It is important to take advice on the value of a French marriage contract here in England, as the law in England and Wales works very differently to French family law and also on how an English prenuptial agreement might apply abroad. These questions affect international couples.

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