Zut alors! - English court refuses to uphold a French matrimonial property regime

Posted: 14/01/2015

The case of Y and Y (Financial Remedy: Marriage Contract) [2014] EWHC 2920 (Fam) 

Will the English Family Court give effect to a French séparation de biens contract?

The parties were French, and had married in France but had lived in England for many years. 

In France, as in many other European jurisdictions, it is possible for a couple to elect a particular property regime, which will determine how their assets are held, both during the marriage and upon the dissolution of the marriage, whether by death or by divorce. A séparation de biens regime provides that the parties will hold property individually, unless it is specifically agreed that it will be held jointly. Such a regime will be recognised and upheld by a French court on divorce. 

48 hours before marrying, the couple had entered into a French contrat de marriage under which they agreed to a séparation de biens marital property regime. 

The question for Mrs Justice Roberts, sitting in the Family Division of the High Court, was whether such a regime should be binding, given that the couple were divorcing in England after a long marriage, largely spent in England. The husband argued that the regime should apply, which would mean he retained two-thirds of the assets, being the assets in his sole name and his share of the assets in joint names. The wife argued that she should be able to share equally in all the property acquired during the marriage, regardless of whose name it was in.  

In a very careful judgment, Mrs Justice Roberts looked in detail at the circumstances surrounding the signing of the contrat de marriage. She found that the wife had had no independent legal advice, and that the full implications of the contract had not been explained to her. Specifically, she had not understood that the contract would affect her rights to property on a divorce. She emphasised, as other High Court judges have done, the difference between a marriage contract and a prenuptial agreement, which is specifically drafted in contemplation of divorce. She noted, in particular, that the contract did not contain any retention of jurisdiction clause, and that she was not therefore required to apply French law when determining the impact of the contract. 

In all the circumstances, Mrs Justice Roberts found that the wife should not be bound by the terms of the contract. This was a long marriage and, under English law, the wife was entitled to share equally in the assets accumulated during the marriage. 

Simon Blain, a senior associate in Penningtons Manches' family law team with particular expertise in French cases, commented: “Many European clients ask whether they will be protected by a matrimonial property regime, in the event of divorce. This case confirms, once again, that there are very limited circumstances in which such a property regime will be upheld in England. Clients relocating to the UK from jurisdictions that have matrimonial property regimes are strongly advised to seek UK legal advice and to enter into a prenuptial or postnuptial agreement, making explicit provision for the division of assets on divorce. Serious consideration should also be given to a retention of jurisdiction clause, providing that the law of their home state is to apply, in the event of a divorce.”

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