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Main differences between French marital agreements and English nuptial agreements
Getting married in France and living in the UK
Getting an agreement for a French couple as expats
Anglo-French couples facing a divorce
PacisLexis Family Law
Anglo-French nuptial agreement lawyer
If you wish to learn more about Anglo-French nuptial agreements, you can get a good overview in this article.
Marital agreement definition in France
In France, a marital agreement is a legal document where spouses decide how they want to share their assets during and after their marriage (divorce, death…).
A marital agreement is not compulsory in France but is useful for couples who want to separate assets, properties and belongings.
Prenup & postnuptial agreement in the Common Law
The common law system has a reputation of being taiored to wealthy and rich people so they can protect their fortune and assets. However, it’s a bit more complicated than that and french expat couples must pay attention as a french marital contract would not be enforceable in the UK.
In the following article we will try to outline how a French contract can work in the UK and how couples can save themselves from troubles in the eventuality of a divorce.
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French nuptial agreements vs English nuptial agreements
What are the main features in a French nuptial agreement?
1) French marital contract
In France, a marital contract provides a structure for a couple in their division of assets. In France those contracts set out how the assets should be divided in the case of a divorce as well as death.
This contract also outlines the matrimonial property regime the spouses fall under, and helps them manage their assets.
In an English nuptial agreement, the matrimonial property regime is not mentioned.
2) French nuptial contract validation
A French marital contract, to be legally binding, is prepared and signed before a Notary. The notary can also help the spouses choose their matrimonial property regime depending on their specific financial circumstances.
This marital contract is sent to the couple’s local civil registration services to be recorded previous to the wedding ceremony.
What are the different marital property regimes in France?
There are 4 differents regimes which can be summarized as follow:
– Le régime de la communauté réduite aux acquêts : This regime is also known as the default regime. Assets, liabilities and properties acquired before the marriage are considered separate. All assets, liabilities and properties acquired during the marriage are considered joint.
– Le régime de la séparation de biens : To choose this regime, spouses must get a marital agreement. In this regime, everything is considered as separate property. Assets and properties bought together will then be shared equally in case of a divorce. Also, in this regime, assets acquired are considered separate, as are everyone’s debts.
– Le régime de la participation aux acquêts : This regime is between ‘la communauté de biens’ and ‘la séparation de biens’. In case of a divorce or death, a spouse will get the benefits of getting half of the assets from the other if an increase in earnings and assets.
– Le régime de la communauté universelle : To choose this regime, spouses must get a marital agreement contract. In this regime, assets and properties acquired before and during the marriage are considered joint.
What is the Common Law?
Common Law definition
The Common Law is the part of English law that is based from customs and judicial precedent rather than statutes. The Common Law is the law declared by judges and the UK is divided into three self-contained legal systems. Each jurisdiction has its own laws, Court system, lawyers and judges.
Common Law became the legal fundament of all british colonies such as :
– The USA (except some states like Louisiana, California and Porto Rico)
– Eire
– Hong Kong
– Canada (except Quebec)
British commonwealth is an association of 56 nations across the world and follows the Common Law.
What is a nuptial agreement in Common Law?
The nuptial agreement is an contract under the Common Law. Nuptial agreement stands for prenup and postnuptial agreement.
The English nuptial agreement sets out financial matters in case of a divorce.
The content of this contract is chosen by the couple. This contract sets out how the couple wish for their assets to be divided among them. Contrary to a French nuptial agreement, Common Law prenups can also deal with incomes, treatment of earnings and future earnings in case of a divorce.
For English Courts such contracts are not legally enforceable especially if judges consider that the agreement is not equality-based or discover the spouse was pregnant when she signed off the prenup agreement before getting married.
Are prenup agreements legally binding?
In English law, a prenup does not require any sort of prior certification by the Court. Both parties receive independent legal advice before entering into the prenup and lawyers keep a copy of the contract.
If you own assets in France, both parties should take specialist advice in France and in England. English courts are quite cautious about marital contracts and can veto any agreement if any part of it is unfair or does not meet all qualifying criteria.
Our family law firm works closely with Common Law solicitors and barristers advising spouses with assets in France. Our mission is to achieve parity and a prenup agreement that meets all qualifying criteria especially regarding the default regime.
As in France, the Common Law allows couples to enter a postnuptial agreement.
Do marital regime exist in the Common law?
No!
In England and for most countries under the Common Law, the act of marriage does not create a property regime. Thus, a default matrimonial property regime does not exist.
In England, any financial assets acquired during the marriage also legally belong to your spouse. The assets Community regime is not applicable. In case of a divorce, the court will look at a number of different factors when deciding how matrimonial assets should be split between the spouses.
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Marriage in France before moving to the UK
What is the applicable law for a couple married in France before living in the United Kingdom?
There are 2 different situations to look at depending on the choice or not of a marital property regime.
1st case scenario: spouses assigned the law applicable to their marital property regime
Following the Hague convention of the 14th of March 1978, spouses have to follow the regime they entered into.
The marital property regime can be:
– State or civil law where a spouse was living when choosing the regime
– State law or civil law where a spouse comes from when choosing the regime
– State law or civil law where spouses want to live after getting married
The applicable law will set out the marital regime and determine how assets are divided.
2nd case scenario : Spouses did not assign the law applicable to their marital property regime
When spouses did no assign the law to their marital property, the law of the country of their first residence after the wedding will set out the regime.
For this reason, we have to consider whether the spouses want to live in France or in the UK.
a) Spouses chose to live in France
In theory, they have entered the French civil law applicable to their regime. Thus, spouses can follow their marital contract T&Cs. Regarding their marital regime it should not be an issue for them to move.
However, in practice, english Courts does not recognise and uphold a French nuptial agreement for many reasons. First they are not incline to apply the French law rules and its different marital regime. Finally, assets are equality-based share. In other words, a judge can choose not to huphold a french marital agreement and decide to reject it for its unfairness.
If you want to live in the UK, we advise you to get a postnuptial agreement for you to handle the full implication if you’re getting a divorce.
b) Spouses chose to live in the UK after a wedding in France
If you are married in France but want to live in the UK, you will be bound to its jurisdiction.
A postnuptial agreement will allow you to draw up relevant clauses within it, in case of assets in France or if you want to live in France again.
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Setting out an English nuptial agreement for French expats
Can a French expat couple set out an English nuptial agreement?
Yes!
We advice you to draw up a nuptial agreement in accordance with English Law if you want to live in the UK.
A nuptial agreement that is properly constituted carries the twin benefits of both (UK and French agreement) and is highly likely to be upheld as providing certainty to both parties and Courts in case of a divorce.
A French couple could:
– Draw up a prenup if they are still not married,
– Draw up a postnuptial agreement if they are already married. They can also include some clauses related to their regime as a fair share of the assets
Can an English judge uphold a prenup or a postnuptial agreement drawn up in the UK?
Not really !
UK prenups and postnuptial agreement are not really binding. However even if UK Courts recognise prenup, they can also reject any agreement if a part is unfair or discriminatory.
Can a French expat couple get 2 nuptial contracts, one in France and one in the UK?
No!
Despite this solution seeming to be more protective, it is not.
As jurisdictions are completely different, the contracts T&Cs can lead to a misunderstanding and can be rejected.
The best solution is to seek specialist advice in the UK as in France. Together lawyers can work out on some issues and can draft specific clauses.
This contract could then be enforceable in the UK as in France.
english speaking french divorce lawyers
Anglo-French couples facing a divorce
Are divorce implications the same for a couple living in France or in the UK?
No!
French family law and English family law are very much different.
In France, despite the fact you can get compensations, in case of a divorce, Courts are more likely to follow the regime the spouses entered and its implication.
In the UK, Courts are more likely to aim for fairness.
For example, in the UK, if a couple is wealthier at the time of the divorce compared to the beginning of the marriage, Courts might choose to equally share assets (but not always). The English Judge will also take into account each partners’ earnings and jobs, children, pensions, inheritance.
‘Being fair’ may not be what the couple was looking for by entering a marital agreement.
Our family law lawyer firm is dealing with anglo-French divorce. We closely work with solicitors and barristers across the UK to help out our international customers.
What are the financial implications of a divorce in France and in the UK?
Spousal maintenance is well known and awarded by the Courts to be paid by the spouse with the higher income to the spouse with the lower one when they divorce.
Sometimes a spouse can not support themselves without payments from the other. Spousal maintenance is relevant in cases where one party earns more than the other and the needs of the recipient can not be met from their own income.
1) French spousal maintenance
Spousal maintenance amount is set out by a French judge regarding the paying partner’s circumstances and the owning partner circumstances.
Spouse maintenance is based on :
– Spouses’ current circumstances
– Spouses’ future circumtances
– Spouses personal circumtances and needs
– Spouses’ earnings and professional circumtances
– Each partners’ bills
Spousal maintenance can be granted for life or on. afixed term based.
Our family law lawyer firm can calculate the spousal maintenance amount you could get or pay.
We use classic spousal maintenance evaluation methods. However we can also calculate your spousal maintenance thanks to our AI software to give you a good overview.
The subsequent AI report is useful during a mutual consent or contested divorce.
2) UK spousal maintenance
Spousal maintenance is usually negotiated as part of making a divorce settlement or by the judge who will look at the fairness of the situation.
The Court will look at the overall circumstances to determine the level of maintenance. Therefore Courts can totally reject marital contracts if judges beieve the situation of both spouses will be appropriate and fair as it is.
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PacisLexis Family Law
You want to learn more about Anglo-French agreement?
You are an Anglo- French couple? You are looking to get married or you are already married? You want to move in the UK or in a Common Law country?
Contact us to draw up your French marital agreement or your prenup or postnuptial agreement!
We will offer you an appointment within 48 hours in our Paris offices, by phone or video. 1st firm in the metaverse, we will be pleased to welcome you in our virtual offices!
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