Francophone couples living in England or those who own assets here may be surprised at the differences between a standard English prenuptial agreement and the ‘contrats de mariage’, which are so common across continental Europe.
There are several reasons why Francophone couples may decide to enter into an English prenuptial agreement. For example, one or both of them may live and/or work in England; they may have extensive assets and/or family wealth situated in England; or they may intend to relocate to England at some point during the marriage. In all such cases, it is imperative to consider whether these parties should be entering into an English prenuptial (or even postnuptial) agreement to better protect their existing assets and regulate how assets may be shared on divorce.
The benefit of an English prenuptial agreement compared to their continental European counterparts is that these documents, while not enshrined in statute, can be precisely tailored to the relevant couple’s exact circumstances, needs and priorities. With the benefit of expert legal advice, a couple should be able to alight on a framework which suits their life and marriage rather than selecting from a range of default matrimonial ‘regimes’. The obvious consequence of this is that the negotiating and drafting of English prenuptial agreements can often take much longer and may be more expensive in terms of an overall process. Here are some key points to consider to ensure that the process is streamlined as possible:
- Which is the lead jurisdiction in your case? In other words, where does the couple have the closest connections in terms of their lives, assets and family? Is it England, France, Switzerland or somewhere else? Keep in mind that it is not necessarily where the couple gets married that is the most relevant jurisdiction; the key jurisdiction is likely to be where the couple are resident at the time of any divorce. This means you should reflect on where you plan to live during the marriage to help you decide which country should be the “lead” jurisdiction for your prenuptial agreement and whether your case would benefit from an Anglicised ‘contrat de mariage’ or a Frenchified prenuptial agreement.
- Connected to the question above, where do you need to take advice? You may be living and working in London and plan to remain there for the duration of your marriage. However, if you are a French or Swiss national and/or you may inherit or be gifted significant assets in either of those countries then it may be worth taking advice from a local lawyer to ensure your prenuptial agreement meets requirements in those jurisdictions. Keep in mind that in England, couples should ideally receive independent legal advice from a specialist family lawyer on the terms and implementation of the agreement, rather than being able to visit and take advice from the same notaire.
- Timing is key. In England, there is no absolute limit on when agreements can be signed but guidance from case law tells us that there should be no undue pressure or duress when entering into prenuptial agreements and this means most practitioners aim to have the document signed ideally at least 28 days before the legal wedding ceremony. Couples looking to enter into a prenuptial agreement in England should therefore allow at least a few months before their wedding to complete the process.
- Be prepared to disclose your wealth. In the English process financial disclosure of existing and future assets, as well as current earnings, is expected. Parties need to appreciate what the other has and may receive during the marriage in order to make an informed decision about the terms of the prenuptial agreement.
- The watchword under English law is ‘fairness’. When interpreting and applying the terms of any prenuptial agreement, including a contrat de mariage entered into elsewhere, an English judge will want to ensure that neither party is left in a predicament of real need, i.e. that both parties will be able to house themselves and meet their essential expenses.
- An English prenuptial agreement can specify the expected financial outcome on divorce, but also how that outcome should be achieved (i.e. via a process such as mediation, arbitration or otherwise) and where any issues relating to the breakdown of the marriage should be litigated, if necessary. This is likely to be especially relevant to those couples wishing to elect French or Swiss jurisdiction rather than the courts of England and Wales.
- Finally, mind the ‘PACS’ trap – any couples who have entered into a ‘Pacte Civile de Solidarité’ will be treated as having the same rights as a couple in a civil partnership in England, equivalent to a marriage under English law. Therefore, the simple act of moving across the Channel may add a layer of importance to your relationship which you had not anticipated when entering into the PACS in France and it might be worth signing a post-civil partnership agreement to record your intentions surrounding the financial aspects of that relationship.
As you will appreciate, taking specialist advice from a family lawyer is vitally important to ensure that your prenuptial agreement, wherever it is signed, is tailored to your circumstances and will offer the desired level of protection, clarity and certainty of outcome.
Further information
If you have any questions regarding this blog, please contact Nevin Rosenberg in our Family & Divorce team.
about the author
Nevin Rosenberg is an Associate in the Family Team. She joined Kingsley Napley in 2022 after training and qualifying into the Family Team at Withers.
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