William Healing

French Marital Contracts: What value do they have in England?

By William Healing of Kingsley Napley
11/01/2013

"French Marital contracts: what value do they have in England?"

My clients often ask me this question, explains William Healing, London-based dual national lawyer, who is bilingual and a specialist in international family law.

There are significant differences between marital contracts and Anglo-Saxon prenuptial agreements, but there are similarities too. The area is complex and you should seek advice from a lawyer in case of doubt.

For French people (whether the couple is 100% French or a mixed couple) who plan to marry and reside in England, you should plan ahead.

The important points for French people are as follows:

1. Should I register the marriage at the French Consulate in London?

If the marriage will be celebrated in England, you can register it as a civil act at the French Consulate in London, if you wish, in addition to the English civil act marriage which is obligatory.

2. What French Regimes should we make?

Registration at the French Consulate will give you a choice of French property regimes – or to have by default, thanks to this registration, the regime of “communauté de biens réduit aux acquêts”. Therefore you can choose a regime or have one by default. However, registration is only the first step to take, and often, for a London-based couple, not the most important one.

3. What is the value of the French marriage contract?

For a French couple that gets married and lives in France, the classic purpose of the marriage contract is to protect the assets more or less (according to the regime chosen), against a claim by other party in the event of divorce, by creditors in the case of insolvency, or by any family members in the case of inheritance. For a couple living in England, the effect of the French regime will be much more limited.

4. What is the role of a French marriage contract in England?

(i) in the case of insolvency or death, the contract will apply in a general way as regards assets situated in France. However, assets located here, and in particular property assets, will not be affected by a French contract. There is no system here of matrimonial regimes, comparable to those which exist in France. English law applies.

5. What is the role of a French marriage contract in England (ii) in the case of divorce?

Here again, once the divorce procedure has been started, English divorce law concerning the division of the assets of the couple will apply. This law is governed by the discretionary powers of the English judge, who has to follow the basic principle of fairness, and also the significant and detailed case-law which exists here. English law does not automatically recognise foreign marriage contracts (or English pre-nuptial agreements). Be aware therefore of the danger of divorce race strategies between the English and French jurisdictions.

6. What are the differences between the contents and eventual application here in England of an English pre-nuptial agreement, compared with a French marriage contract?

You can include in an English pre-nuptial agreement elements relating to maintenance (as is also permitted in Germany), and even capitalised elements of maintenance. This sort of provision is considered in France for the time being to be against public policy. At the point of divorce, an English judge is not obliged to apply the provisions in the pre-nuptial agreement. For instance in a case where the needs of the parties are not met by sufficient assets, the judge will order an equitable distribution of assets to permit a fairer result for the parties. Recent English case law shows that, when possible, and particularly where there are significant assets, the judge will try and ensure the provisions of the pre-nuptial agreement are respected, provided the terms of the agreement are more or less fair for the parties (both in the way it was drafted, and also in the outcome which the terms provide for).

Read the second part of this article later this month, on the website and in our next newsletter: Should I do an English pre-nuptial agreement? French Marital Contracts and English pre-nuptial agreements - to what extent are they recognised across the Channel?

For all information on family law, concerning Francophone families, don’t hesitate to contact William Healing, Partner, Kingsley Napley LLP; email whealing@kingsleynapley.co.uk;
direct line: 020 7369 3827;
website www.kingsleynapley.co.uk

Case Study A

Laurent is a 38-year-old banker who is going to get married in 3 months to an English woman, Sophie, who works at the same bank.

He earns well, and now has significant assets in bank shares and offshore savings. He wants to buy a property with Sophie, contributing a £400,000 deposit. She will contribute £100,000.

It is possible that Laurent will be posted by his bank abroad, in one or two years (probably New York or Hong Kong).

Laurent will be able to register his marriage at the French Consulate in London, and to benefit from a French marital regime in the event of separation or divorce in France.

All the same, it would be better for him to prepare a pre-nuptial agreement to give recognition to the substantial capital introduced by Laurent. It would also be advisable to ensure in that document, that there is provision for it to be recognised abroad in the case of divorce outside England.

Case Study B

Anne-Laure is already married to Bruno. They married in France 15 years ago, before coming to live here 7 years later. They have two children. Bruno is the main bread-winner. Anne-Laure has the main childcare responsibilities.

Anne-Laure has just inherited shares in French companies and shares in apartment blocks in France. She wants to protect those assets.

She will be able to prepare with Bruno a post-nuptial agreement. This is identical in its substantive contact to a pre-nuptial agreement, but simply signed after the marriage rather than before