French marriage contracts versus English prenups – mind the gaps

23 July 2015


If you are a French national living overseas who is going through a divorce, you may expect to be able to rely on the content of your French marriage contract (“contrat de mariage”) to determine the way your assets will be divided between you and your spouse. However, you cannot rely on this assumption, especially if you are divorcing in England.

Under “normal” circumstances, your reaction would be totally appropriate. A couple signing a French contrat de mariage, getting married in France and then living on the French territory, should not have any concern about the validity of the contract they signed in the presence of a French notaire.

Nevertheless, if your plan is to become an expatriate after your wedding or if you have already celebrated your marriage and are settled on the other side of the Channel, then be cautious. Indeed, if you (or your spouse) are going to petition for a divorce before the English courts, it is important to know that the French matrimonial regime you chose when you signed your French contrat de mariage might not be applied by English judges. Crucially, when you decide to cross the Channel, your French contract may lose part of the legal enforcement it had when you were living in France.

How English courts apply different principles on divorce

Because you or your spouse may refer your case to English rather than French courts, getting divorced in England is likely to involve the application of English law to the divorce, even though you got married in France and/or you are French nationals.

In the context of your divorce proceedings, the English judge appointed in your case will not have any obligation to apply the French matrimonial document. The ultimate aim of an English Judge is to reach a “fair” result between spouses who will be awarded with assets relative to their requirements, and needs as well as lifestyle during the marriage will be assessed during the procedure. In bigger asset cases, the starting point is a 50:50 division of all assets following a long marriage.

Although this result is perceived as “fair” according to the English judge’s view, the outcome can be very different from the choices you made as a couple when you signed your contrat de mariage while you were engaged.

English nuptial agreements and how they can protect you

If you’re planning an expatriate assignment in England or are already here, there are ways to safeguard yourself in the event of a divorce in England to give a potential French marriage contract greater weight. Another option is to draft a local English agreement, a pre or a post nuptial agreement. This is the closest equivalent in England to the French contrat de mariage. This document should be suited to your personal situation and although not legally binding as a contract under English law, it will be more likely than not to be applied by English courts in case of a divorce and influential on the outcome.

English judges will give more weight to an English agreement (or a foreign one whose validity is tested here) if English procedural safeguards have been followed. The norms to be respected are lawyers for each party and full financial disclosure. The agreement is much more likely to be followed if those procedures have been followed at the time the document was prepared.

In any case, you should strongly avoid signing two prenuptial contracts – i.e. one in England and one in France – as there is a high risk of contradictory provisions in the documents.

If, for a variety of reasons you choose to draft a French contrat de mariage through a French notaire, please do not underestimate the importance of taking advice from an English lawyer too. Both the English and French lawyers will be able to work hand in hand to tailor a contract “sur-mesure” that will have the highest chance of being followed on both sides of the Channel.

Further information

If you have any concerns or questions about any of these issues, please also see further details on our website regarding our specialist Anglo-French services or contact a member of our team.

You may also be interested in reading our other blog, International divorce – do you need to divorce in the same country you were married?

This blog was co-authored with Alix Troënès, Qualified French Notaire and Intern at Kingsley Napley.

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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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