Back to school…but is it time for a change?
CASE : Z V Z 14 NOVEMBER 2011 Z V Z 2011 EWHC 2878 (FAM)
Facts: The parties married in 1994. Both are French nationals. They had 3 children. They signed a “séparation de biens” French marital contract prior to marriage. The Husband owned 90% of the £15 million (17.5m €) wealth at the time of the separation. In November 2007, prior to separation, he was posted to England for work reasons, along with the family. The family home moved from Paris to London. The Wife issued divorce proceedings first, in July 2008, securing the English jurisdiction.
Question for the court: In English law, following a marriage of substantial length, assets are now usually split 50:50. Both sets of lawyers agreed this would have been the case, but for the existence of the French marital contract. The question for the court was what weight to give the contract? This was the first reported case on this point in the High Court, and was particularly important following the Radmacher decision of 20 October 2010 of the Supreme Court. That decision gives greater importance to Anglo-Saxon style pre-nuptial agreements which can also cover maintenance (as opposed to French matrimonial regimes/ contracts).
The court’s decision: The judge said English law applies – so the judge’s discretion is paramount. We do not recognise applicable law. The earlier Radmacher case made the French contract important, but the Wife would not simply be strictly held to it. In particular her needs, generously interpreted, would not be met if she was held to it. The judge gave her a £3.25 million housing budget (generous even for London property) and capitalised lifetime maintenance. The overall settlement gave her 40% of the capital – far more than a French result, but less than an English one of 50% if the marital contract had not existed.
Practical points to retain: (1) the starting point under English Law remains 50:50 in a long marriage – but the court can move away from that if there is a good reason; (2) the judge has discretion over all assets, and will divide those fairly based on principles of needs, compensation and sharing; (3) following Radmacher and now Z v Z, both Anglo-Saxon style pre-nuptial agreements, and continental matrimonial property regimes are very important factors; (4) in cases with properly drawn up agreements/ regimes, the judge will often move away from a sharing approach (50:50) to a needs approach; (5) an Anglo Saxon nuptial agreement can be drawn up after marriage and a continental property regime can be altered after marriage; (6) the Brussels II race remains vital - the result for the Husband would have been better in France.
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