English family law à la française by Melanie Bataillard-Samuel
December 7, 2013 29 comments
The French Embassy in London estimates that there are somewhere between 300,000 and 400,000 French nationals in the UK. The vast majority of which reside in London. This number is put into perspective when you consider that the third, fourth and fifth largest cities in France (Lyon, Toulouse and Nice) have 448,000, 447,000 and 344,000 residents respectively. That means that a significant number of French people are choosing to live their lives, spend their money and invest their time in England and Wales.
And some unfortunately have to engage with the Family Courts here too.
As a francophone solicitor in London I often represent members of the French community in matrimonial matters and I have noted that the same issues come up time and again, usually due to clients not understanding the differences between French and English law. The following basic guidance may be helpful to French nationals considering separation in England and Wales:
The French PACS (civil solidarity pact – a form of civil union between two adults of either the opposite or same sex) is not recognised in England and Wales. A couple not legally married will not benefit from any of the protections, benefits, tax advantages, etc of marriage or civil partnership as they will be considered by the English courts to be simply a couple living together. Cohabiting couples who have entered into a PACS will need to consider how they own their property and how they share their assets, bank accounts, debts, etc. They may wish to consider protecting each other and themselves by entering into cohabitation agreements, declarations of trust for their properties or even wills.
*Should you begin family proceedings in France or in England?
Couples who married or began their relationship abroad often believe they have to address their divorce, separation of finances or issues surrounding their children in that country. That is not necessarily correct. Often French couples living in London will be able to choose between either France or England. This will be subject to certain criteria, such as on nationality, residence and domicile (legal residence of a particular country) .
Which country has the jurisdiction to deal with issues regarding children, such as parental responsibility, contact, and residence, will depend on their parents’ domicile and the children’s own habitual residence, as well as their nationality. The children may hold a French passport but that doesn’t mean the English courts will be unable to help. In fact, in most cases where a family has been living in England there may be no other choice open to them but to address the issues in the English courts.
*Prenuptial agreements and marriage contracts
Any prenuptial agreements and marriage contracts cannot automatically be enforced when couples divorce in England and Wales. The English Courts will seek to apply English law, only considering and giving weight to these agreements in certain circumstances. For example, in a situation where there are still substantial funds available to a divorcing couple once their housing needs and living costs have been met, the Court may well then take a look at any prenuptial agreements.
Matrimonial regimes are a system of asset ownership in France between spouses which can be agreed between them or automatically granted by French law. It does not exist in England and Wales. The English Courts have a wide range of powers which enable them to provided tailored solutions to each case, such as ordering the sale of a property, or the transfer of assets from one party to the other and the requirement to provide maintenance.
I would always strongly advise French nationals living in England or Wales to speak to a specialist family solicitor about their rights. Scotland, of course, has its own legal system and its own approach to family law.
Having graduated from Bath University in 2002, Melanie Bataillard-Samuel then studied and obtained the Graduate Diploma in Law and Legal Practice Course at BBP Law School in London. Melanie qualified as a Family Law solicitor in 2007 at a leading South East Legal 500 firm.
Melanie’s areas of work include a broad range of divorce financial remedy cases and matters concerning financial provision for children and all aspects of financial provision arising out of the breakdown of marriage or of cohabitation, such as maintenance pending suit and “TLATA 1996” applications. Melanie advises on the drafting of pre- and post-nuptial agreements and separation agreements. She also deals with civil partnership dissolutions. Melanie acts for parties in Children Act applications and has experience and understanding of international family law matters including leave to remove applications.
Melanie is fluent in French and English and also speaks Italian. She has close links with the French community and frequently acts for French and other international clients in cross border cases.