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Law

Anglo-French Relationships

By Frances Sieber
13/04/2008

Anglo French relationships
Have you moved to England from France and are you in a relationship, whether married, civil partnership or unmarried. There are some facts you need to know about  your financial position generally and what could happen if your relationship breaks up.


Married or  Civil partnership
Whereas in France, PAX applies to both same sex and heterosexual couples and has no financial implication as between the parties should the relationship break down. In England and Wales a PAX is recognised, in the case of same sex relationships, as a Civil Partnership, so should the relationship break down and should the English rules apply, there could be a financial settlement under English law.


Which court – jurisdiction?

The first question is where can the divorce./ dissolution take place.

It is not relevant where you married or entered the PAX or civil partnership. The important factor is where you live and where you are a National of, (if French) or domiciled, (if British).

Under Brussels II you can apply in England and Wales if one of the following apply :

a) Both parties are habitually resident in England and Wales
b) The Respondent is habitually resident in England and Wales
c) Both parties were last jointly habitually resident in  England and Wales and the Petitioner continues to reside in England and Wales.
d) The Petitioner is habitually resident in England and Wales and has been so resident for the period of one year preceding the date of this petition.
e)The Petitioner is domiciled in England and Wales and has been so resident for the period of 6 months preceding the date of this petition.
f) Both the Petitioner and the Respondent are domiciled in England and Wales and the respondent is not habitually resident in, or a national of another contracting state under Council Regulation (EC)NO 1347/2000 of 29th May 2000.
g)Either party is domiciled in England and Wales and no other contracting state under Council Regulation (EC) NO 1347/2000 of 29 May 2000 has jurisdiction


The same rules apply in France but the French court uses ‘French National’ instead of domicile. Domicile is a strangely English concept and applies to where a person chooses to live and die. A person has their Father’s domicile at birth. This can be lost if they acquire a new domicile by moving to another country permanently when they obtain a new ‘domicile of choice’.

It is possible for two countries to have jurisdiction to divorce/dissolve a marriage/civil partnership. If that happens, the court where proceedings are issued first will be the ‘first seised’ and will deal with the divorce and financial settlement.

Grounds for a divorce
In addition, there must be grounds for a divorce which in England. They are that the marriage has broken down irretrievably by reason of:

a)    the adultery of the other party and the petitioner finds it intolerable to live with them.
b)    The unreasonable behaviour of the other and the petitioner cannot reasonable be expected to live with them
c)    Two years living apart and both parties consent
d)    Two years desertion
e)    Five years living apart.

In the case of a dissolution of a civil partnership, ground a) above does not apply.

Does it matter where the proceedings are commenced?

Because of the different rules that are applied by the English and French court to matters such as the arrangements for the children and the financial position, it can make a big difference to the outcome. As a general rule the English court is more generous to the non-working party and there are very different approaches to pre marriage agreements.


Financial claims on divorce.
In France, there are property regimes entered into on marriage (such as separation des biens), which dictate the financial settlement if the divorce takes place in France.

In England, we have pre nuptial agreements, which are not the same and which are by no means usual They are not automatically followed on divorce and dissolution and the English court will not automatically apply the terms of a French marriage contract. This has an important  bearing on the choice of jurisdiction.

In addition the French courts approach to capital is affected by the French treatment of land on death.

Whilst the French marriage contracts determine whether all assets are taken into account or only those generated during the marriage on divorce the English court has a different approach.

In England and Wales the court is entitled to redistribute all capital assets owned by either party on divorce/dissolution and broadly speaking for a marriage/civil partnership of a reasonable length (7 years upwards ) and with children, the court looks at broadly equal division of the capital assets, but every case is treated differently and on its own particular facts. Pre marriage/civil partnership cohabitation is also relevant.

The court will deal with the former matrimonial home, the capital assets, periodical payments for the wife and can divide any pension either party has accrued. The court has slightly different powers on a dissolution of a civil partnership.

It is possible in some cases for there to be a clean break settlement so that there is no ongoing obligation to pay periodical payments, and this is sometimes achieved by the payment of a lump sum or transferring the former matrimonial home.

Child Provision

Provision for children is usually made by the Child Support agency if both parents are in England and Wales. It is 15% of the payer’s net income for one child, 20% for two and 25% for three or more children. If the payer’s net income is over £104,000 per annum an additional payment can be made.

Capital claims for children where there is no marriage
Children born to unmarried parents have claims under the Children’s Act for capital to provide for the children’s needs whilst the children are dependent (i..e under the age of 18 years or in full time employment). This can include the provision of housing.

Inheritance claims
The English courts do not have the same rules of inherited land as in France

Any one of sound mine can make a will leaving their assets to whosoever they wish. In the event that there is no will then the person will be intestate and the intestacy rules will apply.

In the event of the death of the partner who is domiciled in England and Wales, whether married or in a civil partnership, or unmarried or within a same sex relationship, (having lived together for two years), claims for both capital and income are possible against the estate of the other under the Inheritance (Provision for Family and Dependents) Act 1975. The court will consider any wishes left by the deceased and any conflicting claims by dependents.

Financial claims where there is no marriage or civil partnership.
There is no obligation in English law to maintain a former cohabitee once the relationship is over.

Claims for capital arise from capital contribution to a jointly owned property or where there has been a financial contribution to an asset owned by the former partner and it can be shown that there is an agreement that the contributor should benefit. Once an entitlement is established, the court may take into account non-financial contribution, such as caring for children to increase the entitlement.

Ironically, the surviving co-habitee of two years as stated above, will be better provided for if the partner dies.

For more information contact:
Frances Sieber
Head of Family Department,
Pritchard Englefield
14 New Street,
London EC2M 4HE
Telephone 020 7972 9720
Fax 020 7972 9724
e-mail fsieber@pe-legal.com

Frances is an accredited family lawyer and trained  collaborative lawyer.

COMMENTS:

04/09/2008 - patriciaconnell said :

Having seen many of my friends going through some very rough divorces, I believe that if you can afford it, make sure you have the best lawyer possible. Do not make do with the first one you meet. Do not be afraid to ask what their success rates has been so far and whether they have worked on Anglo-French divorces.

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