The English Channel, La Manche, is only 350 miles long, separating England from France. When looking at divorce principles however, we have historically been oceans apart from France, with significant differences in outcome depending whether the proceedings have taken place in France or in England. French law is based on a civil code, with divorce law applying property regimes to the division of assets, which is often incompatible with the common law, discretionary system in England. In the early years of my Anglo-French practice, French couples living in England were often taken aback to learn that the property regime they chose when they signed their French marriage contract might not be applied by English judges if they divorced in England.
The changing landscape
There has been a gradual but significant change in approach in England since the Radmacher case was heard in the Supreme Court in 2010. That case determined that the court should give effect to an agreement that is “freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement”.
Back in 2010, my colleague Charlotte Bradley wrote about the European marriage contract being a “different animal” to the English prenuptial agreement in her blog here.
Indeed, the English court continued to treat marriage contracts in a different way to a comprehensive Anglo-Saxon style of prenuptial agreement. In the case of of Y v Y (Financial Remedy: Marriage Contract) [2014] the wife challenged the marriage contract on the basis she did not understand that it would apply on divorce, she believed that it was entered into to protect them from third-party creditors and saw the contract for the first time 2 days before the wedding.
In that case, the judge determined that the non-matrimonial property should be excluded from sharing but the wife received 50% of the matrimonial assets, despite them being held in the husband’s name. This was at odds with the approach that would have been taken in France, where a separation of property regime (“separation de biens”), means that assets acquired by the spouses before and during the marriage remain their sole/personal assets, except if they jointly bought these assets, in which case they are considered as joint/common assets.
Where are we now?
Case law has developed again in the last few years, and two recent English reported cases, CMX v EJX [2022] and BI v EN [2024] involved French couples who had signed a separation de biens marriage contract at the start of their married lives. In both cases, the marriage contract was taken into account and therefore limited the financial provision the wife would otherwise have received.
When considering whether to uphold a French marriage contract (i.e. dividing property as it would be in a French divorce), the following factors will be relevant:
- Pressure: Was the contract freely entered into?
- Understanding: Did the parties have a full appreciation of the implications of the contract?
- Formalities: Whose notaire was appointed, were there meetings? Did the notaire explain the contract and its consequences to the parties?
- Motivation: What were the reasons for the contract and has it been reconsidered or referred to during the marriage?
These recent cases confirm that the existence of a marriage contract is now a relevant consideration on divorce in England; the Judge’s comments in BI v EN make this clear:
Those who sign marriage contracts must understand that it is a significant step with very important consequences. These contracts will be enforced in France and will not simply be torn up in this jurisdiction”
Is the contract the end of the story?
Whilst the recent cases confirm that there is some alignment as between the cross-channel approaches to marriage contracts, there is still a gulf – in many cases- between the English and the French approach in relation to the meeting of needs. In England, once property has been divided in accordance with the contract, the Judge will go on to consider whether needs have been met. In the case above, the wife received generous provision, including second properties, to enable her to have an appropriate lifestyle and capital base to provide for her appropriately for the rest of her life. The level of assets and lifestyle will be relevant considerations, meaning that the effects of the contract may be mitigated. Compare this approach to the somewhat restricted calculation of the French prestation compensatoire, and it remains the case, currently, that English proceedings may continue to be more generous than the French equivalent.
If you have any questions about the topic of this blog, or you need advice about Anglo-French divorce, please contact Claire Wood or a member of our Anglo French family team.
about the author
Claire returned to Kingsley Napley as Legal Director in 2022, having previously worked at the firm from 2008- 2018. Claire is a family lawyer with over 15 years’ experience of advising clients on divorce or separation, financial settlement, prenuptial agreements and the arrangements for children.
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