If you and your spouse were married in France with a “contrat de mariage”), you might be wondering if it holds weight If you are now living and residing in England and planning to divorce here.  At Just Family Law, we have experience of advising international clients dealing with marriage breakdown. Here’s how your French marriage contracts will fit within the English legal landscape:

The French matrimonial property regime governs how property assets are divided. The default regime is the communauté réduite aux acquêts: the assets owned before the marriage and the ones received by gift or inheritance 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.

An opt-out of the default system by choosing an alternative regime:

• Separation de biens: the assets of the spouses remain separate.
• Communauté universelle: all the assets of the spouses are joint.
• 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 notaire calculates the increase in the value of each spouse’s assets during the marriage and the increase is then divided equally.

If you divorce in France, your marriage contract will determine how all capital will be split between you and your spouse and it will always be enforced by French judges (except in very exceptional circumstances). However, if your divorce takes place in England, the situation might differ as English judges do not automatically enforce foreign marriage contracts.

French couples living in England are often surprised to be advised that the French matrimonial regime they chose when they signed their French marriage contract might not be applied by English judges if they divorce in England.

 

Unlike France, where marriage contracts are standard practice, the UK takes a more relaxed approach and pre- nuptial agreements aren’t automatically binding in court. The landmark case of Radmacher v Granatino ((2010) UKSC 42) gives guidance of a three-part test to be considered when determining if a pre- marital agreement should be enforced by a UK court.

• Freely Entered: Did both parties understand and agree to the terms without pressure?
• Full Understanding: Did you have independent legal advice from a notaire explaining the contract’s implications and consequences?
• Fairness: Would upholding the agreement be fair to both parties considering current circumstances, especially regarding children’s needs?

 

Following this 2010 case, marriage contracts have been regularly upheld in circumstances in which the parties had not been put under pressure to sign it and fully understood the aim and impact of the document that they were signing. A The marriage contract is more likely to be upheld if there are strong French links, for example if the parties have lived in England for only a short time before the divorce petition was issued and owned properties in France as opposed to a couple who have lived in England throughout their marriage.

 

So, what does this mean for your French marriage contract?

While the UK court won’t rubber-stamp it, a well-drafted French contrat de marriage meeting the Radmacher criteria can be highly persuasive.

Why Might It Not Be Upheld?

• If the contract leaves a spouse without reasonable financial provision, especially when there are children involved, the court is likely to prioritise their needs. English courts must have regard to all the circumstances of the case and in particular the specific factors set out in section 25(2) of the Matrimonial Causes Act 1973, such as the spouses’ financial resources, needs, standard of living, ages. The existence of any marriage contract or agreement is only considered as part of the circumstances of the case and the weight given to any marriage contract will depend on the facts of the case and the family’s needs.

 

• Maintenance or income needs claims are not addressed in the contract de marriage as such claims are considered contrary to public policy in France. However, an English court may consider income needs relevant and can make spousal or child maintenance orders.

 

• If there is any element of duress or where the specific facts of the case do not allow the judge to find that the contract was entered into by both parties freely and with full understanding of its implications. Duress or pressure will reduce the weight attached to the agreement.

 

Seeking Clarity: Talk to a Family Law Solicitor

French marriage contracts add another layer to divorce proceedings. Consulting a qualified family law solicitor experienced in international cases is crucial. They can assess the strength of your contrat de marriage, advise on its enforceability in the UK, and guide you through the best course of action.

Remember: You should also seek advice from a French lawyer too

This blog is for general information only and doesn’t constitute legal advice. Every case is unique, so speak to a solicitor for tailored guidance on your situation.

We Can Help: For advice about your divorce or separation in the UK where you have a French contrat de marriage contact Just Family Law for further information on 01962 217640 or email joannehouston@just-family-law.com