English family law à la française by Melanie Bataillard-Samuel

French flagThe 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 PACS

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) .

*The children

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

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.

Photo of the French flag by cactusbeetroot via Flickr under a Creative Commons licence

 

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 Melanie Bataillard-SamuelLaw 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. 

 

 

Stowe Family Law Web Team

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29 comments

Andrew - December 7, 2013 at 2:05pm

Things can get lost in translation. Some years ago a French legal journal had an article about some of the odder aspects of the English legal system. The author remarked that senior judges who were not married were expected to take on a lot of extra paperwork.

She had read that all applications for permission to appeal were considered by a single judge and had understood that to mean “un juge celibataire”!

JamesB - December 7, 2013 at 2:33pm

Cant move without hearing French spoken in London.

JamesB - December 7, 2013 at 2:56pm

We really need to get out of the EU asap.

JamesB - December 8, 2013 at 3:26pm

Isn’t someone going to stick-up for the European Union? Guess not.

Yvie - December 8, 2013 at 3:57pm

Well don’t expect me to James. Bring on the referendum!

JamesB - December 8, 2013 at 5:43pm

I agree Yvie.

Andrew - December 8, 2013 at 6:45pm

I know my post added nothing of value, although I hope it raised a smile, but at least it wasn’t a drift into politics.

James, Yvie: even if we left the EU the French people here would not be required to pack their bags the next day, or vice versa, so the interplay of our divorce and property laws and those of France would remain a live question. So please keep the politics for a blog where it matters.

JamesB - December 8, 2013 at 7:22pm

Law and politics is the same thing by the same people.

JamesB - December 8, 2013 at 7:23pm

The law is written by the politicians.

Paul - December 9, 2013 at 10:28am

The law is written by the judges, the common law. Twenty years worth of Children Act decisions, notably appeals, produced the body of case law which did fathers down, saw them imprisoned, saw them pigeonholed as minority parents or lose their children forever. No formal review of family law has ever produced an honest, revisionist history by spelling out the damage to children wreaked by judges in their constant, biased interpretation of a gender-neutral law. Back in the day, the common law provided for fathers to raise their children. Then it shifted by statute, which gradually provided for them to be excluded. We see the damage on the sink estates of our time but hand wringing, shoulder shrugging, doublespeak and newspeak are the order of the day. The truth can never be acknowledged by those in Elysium. They do not know how to utter the words, “sorry, we played our parts in this common law mess”. We now move boldly into the “child arrangements” era, more newspeak to cloak the lack of a proper legal presumption for parenting apart. The revised Children Act still leaves UK family law fatally flawed and parents, fathers particularly, at the mercy of judges and the wide discretion given to courts to exercise discrimination and bias against them.

JamesB - December 9, 2013 at 5:04pm

I agree with all that Paul. Except it’s not right to say politicians are without portfolio or blameless.

They write the laws, Judges interpret it. Example 1973 Matrimonial Clauses Act – which pretty much robbed men of a right to a family life. Example, CSA 1992, which made them pay for being so robbed. Example, Children Act (1999 I think) which robbed men of right to see their children. Example, 1999 pension sharing act, which robbed even more money from men for the dubious privaledge. E.g. politicians abolishing married couples allowance. Eg. single parent tax benefits and money to chuck men out with working tax credits and child tax credits and child benefit. All written by politicians and I blame them more than the judges for this mess who are to implement the law.

That there is a mess, and I agree that there is is the politicians fault. Shooting the messenger – in the form of a Judge is kind of missing the point. Although I don’t really know what the point is as modern liberal democracy and welfare politics seems to fail fathers. I think the answer must rest with the Judges and for the politicians to abolish all of their progressive laws of the last 40 years.

Paul - December 9, 2013 at 6:58pm

I agree that politicians set the law up (there was also massive judicial input into the Children Act as well) in such to provide for discrimination against fathers. They will say it was unintended but it was almost bound to happen. After all, when the law says one parent will be the resident parent and the other is merely a contact parent, the politicians’ law is unequivocably expecting the court to take sides. The judiciary certainly obliged, despite the option of a shared residence order which they could have used to great effect to influence and lead society as well as match the aspirations of emerging numbers of individuals, fathers who had both time and inclination to raise their children. They opted instead to reject this. Case law progression shows unequivocably that the judiciary preferred the concept of the ‘alternate weekend’ or ‘contact’ father in strong preference to the more balanced shared residence order.

Yes too, the whole of family law needs a good clear out from top to bottom. Unfortunately, those in Elysium are too hung up on tradition to do this. That would be too much like a palace revolution. Plus they like passing the port.

JamesB - December 9, 2013 at 8:04pm

Revolution against the Establishment is the answer.

JamesB - December 9, 2013 at 8:05pm

Very much agree with your last paragraph Paul.

JamesB - December 10, 2013 at 12:47pm

I don’t think we should have so many foreign born people in this country and should leave the EU. That said I am married to a non white person and am not racist. In support of that I pay tribute to someone and the famous opening speech he made from the dock while on trial for sabotage in 1964.

Mandela told the court: “During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination.

“I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

I’ll drink to that, and to him.

Andrew - December 10, 2013 at 10:45pm

Does “foreign-born” include naturalised, JamesB?

Do you mean that you wish some of the foreign-born people had not been admitted, or that you want to send some or all of them home?

If the latter, can you define which groups?

Paul - December 11, 2013 at 9:26am

This country only requires modest immigration – to maintain the vigour of national life. Our priority should be to build employment opportunity for those indigenous folk who live at present without work or hope. Thus our own Men may with such support and more, become more self-respecting, engaged and one would hope too, more suitable long term partner material for those women who have fathered their children.

Unbridled immigration as we see now presents a real and present danger to the social fabric of this land.

Stitchedup - December 11, 2013 at 11:27am

Well I’m for the EU in general but I do believe the UK needs to re-negotiate terms. I lived in France for 3 years and class it as my second home, though I’m certainly not fluent in French. You will hear a lot of English being spoken in France; I lived and worked in the silicon chip industry in Grenoble where there was a massive ex-pat community.

JamesB - December 11, 2013 at 1:06pm

I have visited Chamonix where they are fed up with the number of English there. For example at the swimming pool there they only allow Budgie Smugglers as they don’t like the English and English culture of swimming in shorts.

Andrew. Where I live English is very much the minority language. I was hammered on divorce – think I may have mentioned that before. I expect you live in a very nice predominantly white middle class area and regard yourself as multi cultural.

Most languages spoken around here are Eastern European. I did have a Polish neighbour having a house warming party and I went round there with beer and didn’t get through the front door. No I don’t think they are integrating. We are having voluntary aparthied in this country, to such an extent that when I see a car and driver in trouble I will not offer to stop and help push start it anymore, I think society is breaking down under the weight of immigrants.

One of the reasons for this is that the Government can say that the economy is growing as the number of people goes up. I have answered your question, I am talking about foreign EU born people in this country.

I also am not sure what you regard as naturalised so find it difficult to answer that question.

I think my wife – who is from Manila and has a Philipino passport – is more naturalised then the Polish Czechs Slovaks, Bulgarian, Romanian, Slovenian, Croatian, Greeks, etc. As I say it is not about race.

I am ok with what I regard as naturalised British. I do not regard other EU states as that by definition (that is the law and why we should be out of it or change that part of the law). It is outrageous that this state of affairs has arisen. The NHS is suffering also as they can’t bring in decent non EU employees.

I think about 2/3s of the population were not born here, certainly in my area anyway. Overall in the Uk the figure is probably more like a third. Another reason I think is the unmarriageability of UK females and men bringing in females from outside the country an issue that needs to be looked at in the education system with girls expecting to marry footballers and celebrities and go shopping.

By the way, was that really Neil Kinnock’s daughter in law with Cameron and Obama?

JamesB - December 11, 2013 at 1:11pm

I meant to say Slovakian, Lithuanian, French, Latvian, Swedish, Spanish, etc. Think I have missed about 20 countries off.

When Spain won the world cup there was a convoy of Spanish cars and flags and horns down my street FFS.

JamesB - December 11, 2013 at 1:15pm

I would send all of the non British EU people home and start again with that. Our kids might be able to afford to move out from their parents then to start with. Let them in under visa – like my wife had do – where necessary, not by default. I don’t see why they are so welcome here by being born in the EU. We joined it as EEC free trade, not for millions of immigrants to upset our equilibrium.

JamesB - December 11, 2013 at 1:38pm

This subject winds me up and gives me the hump. I will be voting UKIP at European elections. Is the only vote and I am sure on, despite not particularly liking Nigel. I am grateful we have PR at European elections also. I don’t really want to pull out of the EEC but the EU as it stands we have soo many people the island is sinking currently.

Paul - December 11, 2013 at 5:31pm

James, the way I see a vote for English Nige is this: he’s a lightning rod for dissent and will predictably pick up a huge number of votes across a wide spectrum of opinion. So I see no problem with a vote for him and I speak as one similar to you in that I spend a considerable amount of time abroad and love my life all the better for it. After all the rubbish I’ve had in public law and family court back In England I very much go my own way now, ducking out of the system there altogether as far as I can. Modifying your goals, keeping control of your own destiny and giving two fingers to the coalition and the rest of the system is a cathartic part of a personal response to being shafted big time. All we got from Cameron was empty rhetoric from an empty man. Come on Nige!

JamesB - December 11, 2013 at 8:51pm

Yes, I feel much the same way as that. I also agree that the law and politics in this country has alienated a lot of people (myself included) from society, that is not right and why I went off on one here.

JamesB - December 11, 2013 at 8:54pm

Meant to say voting for the UKIP chap with the French name (Farage) at the European elections next year is the only vote I am sure on and decided upon. Think I like to make up my mind the year before elections.

JamesB - December 11, 2013 at 9:08pm

Vive la difference! Is to summarise my opinion on this thread subject.

Andrew - December 11, 2013 at 9:43pm

Well now, James, what about EU men with British wives or partners and children – are you going to break the family tie?

JamesB - December 11, 2013 at 11:00pm

No. I wouldn’t.

Luke - December 21, 2013 at 7:28pm

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.
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Hmmmm… I always regard this as double-speak when I hear it – the protections and benefits are for ONE party in the couple – the other party (i.e. the wealthier one) loses out very badly. A COUPLE as a couple will NEVER ‘benefit’ from this, it is just forced asset redistribution from one to the other.
I think you will find that there are also tax disadvantages as well as advantages to being married.

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Any prenuptial agreements and marriage contracts cannot automatically be enforced when couples divorce in England and Wales.
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Yes, I suspect this comes as a bit of a shock to the French – they may ask what is the point of such a pre-nuptial agreement then if you cannot protect yourself ? Indeed.

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