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Anglo-French Prenuptial Agreements

By tst
08/05/2008

French Marriage Contracts
In France, before marrying it is usual to attend the notary and sign a marriage contract entering into a ‘property regime’, such as ‘separation des biens’, which will be binding in the event of a divorce in France.

English pre-nuptial agreements
In England, pre-nuptial agreements done in the way the English court recognizes,  are not binding by law, but are matters which the court will have regard to on a divorce, as one of several ‘factors’. It is important that the provision is reasonable and the agreement is entered after careful consideration. The English court does not recognize the French marriage contract as it does not comply with the English rules. A pre-nuptial agreement must be entered into prior to the marriage.

What are the English requirements?
1) Both parties must enter the agreement free of any duress or undue influence.
2) Both parties should have separate legal advice (or be advised to seek advice)
3) Both parties must give ‘full financial disclosure’ to the other.
4) The agreement should state that it is to be reviewed on a number of events namely, every five years, on the birth of a child, or on the redundancy or incapacity of either party.
5) The provision must be ‘reasonable’ within the context of what the English court would award on a divorce.

What changes may be made in England?
In 1998, there were Government proposals which would make pre-nuptial agreements legally enforceable on divorce, if they comply with the provisions, which are:

1) Both parties must have separate legal advice (or be advised to seek advice)
2) Full financial disclosure must be given by both parties
3) It would not be enforceable where there are any children, whether born before or after the marriage.
4) There should be a three-week period between the preparation of the pre-nuptial agreement and the marriage.
5) It would not be enforced where it would cause ‘significant injustice’.
These provisions have not become law, but they should be taken into consideration in preparing a pre-nuptial agreement.

Recent changes
Recently, the Court of Appeal has enforced a pre-nuptial agreement where the parties had been married previously, were independently wealthy and had no children from the relationship. There is also a case where it was a pre-condition for the marriage to take place that there was a pre-nuptial agreement in force and the court considered that this made a legally binding contract between the parties.

Why do I need an English pre-nuptial agreement?

If you live in England, even if you are a French national, the English court can have the power to divorce you. It is not a question of where you married or what your nationality/domicile is. If the English court has jurisdiction and the divorce petition is issued first in England, then it applies English law and that does not include recognizing a French marriage contract.
Sometimes a foreign court (and there are presently proposals to make this usual) in certain circumstances, will apply the law of a foreign court so in the future a French court may be able to apply English law in respect of a financial settlement. A French marriage contract would therefore not be sufficient.
In dealing with the financial provision, the English courts have to give consideration to a number of factors which are described as ‘the section 25 criteria’ and include matters such as the age, wealth, and health of the parties, financial contribution and non-financial contribution. A pre-nuptial agreement, particularly after a short marriage, can be treated as a section 25 factor.

Since 2000, the English courts make financial awards on the basis of ‘equality’. The English courts are very generous to the non-working partner, usually the wife. A valid pre-nuptial agreement may protect the richer partner, particularly if there is a short, childless marriage.

What do I do if I am English and my spouse is French?
You can do a French marriage contract and an English pre-nuptial agreement, making the same provision, but be aware that the English pre-nuptial agreement must comply with the English requirements, such as financial disclosure.

Recommendation

For anyone contemplating marriage where the divorce could be in England or English law could apply, as the English courts are already recognizing pre-nuptial agreements in some cases and as it may become law in the future, it is advisable to enter into one before a marriage. Whilst its effect cannot be guaranteed, if there is no pre-nuptial agreement, then there is no prospect of limiting a financial claim on a subsequent divorce.

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.

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