This article aims to alert French people settled in England on the identification of the applicable matrimonial regime in the absence of choice.
The four French matrimonial regimes
In French law, the matrimonial regime can be defined as a set of rules determining the rights and duties of the spouses.
There are four types of matrimonial regime: community reduced to acquests, separation of property, participation in acquests, and universal community.
Regardless of the regime chosen, spouses tend to believe that expatriation to the United Kingdom following marriage does not affect their matrimonial regime. This belief is inaccurate and it is important to differentiate between the following situations.
The case of spouses married between September 1st, 1992 and January 29th, 2019
In the absence of a marriage contract, the Hague Convention of 14 March 1978 provides that the spouses’ regime is of their first common residence. In other words, spouses married in France who establish their first residence in the United Kingdom will be subject to English law.
This automatic mutability leads to legal uncertainty. This is why the European regulation of 24 June 2016 put an end to the automatic change of matrimonial regime.
The case of spouses married after January 29th 2019
For spouses married after January 29th 2019, the EU Regulation 2016.1103 establishes the possibility of choosing either the law of one of the States in which at least one of the spouses has the nationality or the law of the habitual residence at the time of the choice.
In the absence of choice, the law applicable is in principle of the habitual residence of the spouses, failing that, “the internal law of the State with which, taking into account all the circumstances, the spouses have the closest ties “. The law designated by the Regulation applies even if the law is not of a Member State.
Application of the French marriage contract by the English judge
When spouses have concluded a marriage contract in France, the English judge is free to apply or not the French contractual stipulations.
In other words, the English courts remain free to redistribute the property of the parties.
To determine whether such a redistribution of property is expedient, the English Judge will examine both the context of the conclusion of the contract and the assets of the parties at the time of separation in light of an equitable test. The difficulty lies in the identification of this criterion of fairness, source of an abundant litigation in English law.
Imagine as a husband how much you would feel deceived to discover that the marriage contract concluded 20 years ago disappeared across the English Channel.
What is a prenuptial agreement or a postnuptial agreement?
The prenuptial agreement and the postnuptial agreement can be broadly considered as the equivalent of the French marriage contract.
The purpose of these contracts is to identify the owner of a property in the event of separation or divorce in the English courts. Like French law, the contract thus differentiates the couple’s common and own assets.
The binding force of a nuptial agreement before the English judge
In order to maximize the binding force of the nuptial agreement entered into by the spouses, a series of formal and substantive conditions will have to be complied with. In particular, it will be necessary for the parties to each benefit from independent advice and to disclose the integrity of their assets in the form of an inventory.
Nevertheless, even compliance with these rules will not ensure the automatic applicability of these contracts by the English judge. In other words, the English courts will always remain free to redistribute or not the property of the parties. To determine whether such a redistribution of property is expedient, the English Judge will examine the context of the conclusion of the contract and the assets of the parties during the separation. It will perform a case-by-case analysis based on an equity criterion. The difficulty lies in identifying this criterion of equity, source of many litigations.
The use of a board to draft a “nuptial agreement” is essential ast it will allow the parties to limit the risk of the judge challenging the contract.
In any case, it is not recommended to conclude a marriage contract in France and a prenuptial agreement in the United Kingdom at the risk of a contradiction between the contractual stipulations.
Héloïse KAWAISHI, lawyer and mediator in London, Paris and Strasbourg, heads the International Family Law Department at the Jurisglobal Law Firm.
Comprising a team of lawyers and solicitors, the firm Jurisglobal offers you a personalised approach in the context of the conclusion of your marriage contract.