Anglo French FAQ

FRENCH VERSION / VERSION FRANÇAISE

The questions below set out some of the significant differences in the outcomes between family proceedings in England and France in respect of finance and children. For further information read more about our services covering french family law in the UK.

FREQUENTLY ASKED QUESTIONS

1. How would property assets and pre-nuptial agreements be dealt with in England and France on divorce?
2. What are the main differences relating to maintenance for the spouse on divorce if you divorce in England or France?
3. What happens to pension assets after divorce in England or France?
4. Will English courts apply French law in respect of the finances of a divorcing French couple living here and vice versa in France?
5. How is child support arranged for married and unmarried couples in England and France?
6. What financial provision is there for unmarried couples upon separation under English and French law?
7. Do the English courts have special powers regarding children of umarried relationships?

Question 1: How would property assets and pre-nuptial agreements be dealt with in England and France on divorce?

Pre-nuptial arrangements exist by default in France for division of property, under the French Civil Code. These provisions specify by law how property will be divided on divorce.

The default position in French law is that, if the parties do not provide to the contrary, the assets of the parties acquired during the marriage will be split equally on divorce. The parties can seek a different regime provided they involve a notary who will prepare a marriage contract.

In England, capital is split at the discretion of the judge according to established principles of fairness, and case law. A leading case has held that the starting point for the division of assets is a 50:50 share for each party, unless there are good reasons to order otherwise. The existence of a pre-nuptial agreement will be a good reason to depart from 50:50. We give early advice on the likely outcomes in English law.

Question 2: What are the main differences relating to maintenance for the spouse on divorce if you divorce in England or France?

In France, on divorce, compensation for the financial disparity which arises on separation can be ordered. This is called a “prestation compensatoire”.  This is usually a lump sum. Beyond that, the only maintenance payment after divorce will be for a child.

In England, many court orders contain provisions for maintenance for the spouse payable for a lengthy term, sometimes for life. Although often expressed as income payments, the English court still has a duty to consider whether in a suitable case the spousal maintenance can be capitalised quickly.

Question 3: What happens to pension assets after divorce in England or France?

For those who have worked in England, private pension rights are often higher than France. Significant inequality between the spouses can build up over a long marriage. These pension rights may be shared on divorce in favour of the party with the smaller pension. In France, pension rights cannot be directly shared on divorce.  Most pensions are taken into account indirectly in working out the “prestation compensatoire”. In France, the underlying pension rights remain the property of the spouse with the entitlements.

Question 4: Will English courts apply French law in respect of the finances of a divorcing French couple living here and vice versa in France?

No. There is no provision under English law to allow this in English Courts. English Courts apply English law, and indeed all UK jurisdictions apply their own law. However, the English courts can be influenced by a matrimonial property regime or pre-nuptial agreement prepared abroad to a limited degree.

In the other way around, French Courts are prepared to apply English law to couples who get divorced in France (for example an English couple who start a divorce there), but you should seek advice from a French lawyer.

Question 5: How is child support arranged for married and unmarried couples in England and France?

Whether the parents are married or not, the starting point is always the Child Maintenance Service (CMS) and the payment rates laid down by the UK Parliament. This applies to all situations where the children and parents all reside in England; nationality is not relevant.

The rate is a percentage of the non-resident parent’s income, primarily calculated according to the number of children. Other factors can reduce the actual percentage paid. The CMS can assist with enforcing the collection of unpaid maintenance.

Over and above the powers of this agency, the English courts  still have powers to order maintenance, for instance, in cases where one parent has high income, where private school fees need to be paid, where a child is disabled; or where either parent or the child is not resident in England and Wales. The CMS does not become involved in the first place if the parents agree the child support payments privately.

In France child support is also agreed between the parents, but the courts set the rate if that agreement is not possible.

Question 6: What financial provision is there for unmarried couples upon separation under English and French law?

In France, property division and other financial obligations for unmarried couples can be covered by the drafting of a personalised PACS agreement (Pacte Civil de Solidarité). Most unmarried couples, whether same sex or different sex, are eligible to opt into a PACS, which can provide tax, inheritance and social security advantages. A PACS is recognised by the French Civil Code and can be upheld by the courts in case of dispute, for instance, on separation. A couple living in England can enter one under French law provided one party has French nationality.

In England, there is no specific, unified body of law that applies to unmarried couples nor is there provision to enter into an agreement equivalent to a PACS. Property ownership (e.g. of the couple’s house) is decided under general property law. Other piecemeal provision has been made for unmarried families in various Acts of Parliament, for instance, financial provision for children on separation of the parties and financial provision for the survivor on the death of a cohabitee.

Question 7: Do the English courts have special powers regarding children of unmarried relationships?

Yes. The English courts have powers to order that, in cases with sufficient assets, a parent must provide a house to the main carer of the children until they are 18 or finish education. The property provides housing security during those years but does not become the permanent property of the carer.

In France, it is possible for the child maintenance payments to take the form of the right to occupy a property or to rent it out for a fixed period, usually until the child reaches 18. Regarding income, see also child support section above.

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Further information

For more information in relation to Anglo-French cases please contact Charlotte Bradley, Rachel Freeman, or a member of our team on +44 (0)20 7814 1200.