While many English high net worth individuals may have a second residence in France, they also need to be aware of legal differences between the two jurisdictions which may seriously affect their financial affairs. Sarah Whitten, partner in family law at Charles Russell, discusses the most pressing issues facing such clients.

While many English high net worth individuals may have a second residence in France, they also need to be aware of legal differences between the two jurisdictions which may seriously affect their financial affairs. Sarah Whitten, partner in family law at Charles Russell, discusses the most pressing issues facing such clients.

A place in the sun in nearby France is the dream of many. If the place is to be a home all year round, not just for holidays, English families will find themselves having to get to grips with all things French. They will have to become familiar with the French health service if they become ill and the French property regime if they are buying or selling property. If their relationship falters they will have to understand the way that French divorce law works which can differ enormously from the experience in England.

If an English couple live in France the likelihood is that they can be divorced in France. If they have retained domicile in England they may have retained the opportunity of divorcing in England.  This may well suit one of them but not both of them. Generally a wife may well be awarded less from the division of a couple’s assets in France. In England there is a starting point of an equal split of the assets but also a wide discretion which the court will use in particular to protect whichever spouse is viewed to be the most vulnerable. This may mean a wife will receive more than fifty per cent of the assets if she can show that she needs this. 

Different conceptions of “fair”

The emphasis on fairness means that the English court will not discriminate against one spouse who has made non-financial contributions to the marriage as homemaker and main carer of the children as opposed to the financial contributions of the other spouse. The court will strive to achieve a resolution which adequately incorporates the principles of meeting needs, sharing and compensation. This contrasts with the much more formula-based approach in France, which will often be determined by which approach to property division the couple opted for at the time they married.

A significant difference is the absence of maintenance being paid by husbands to wives in France beyond the first few years after their divorce. In England, unless there are sufficient funds to buy out a wife’s financial claims in their entirety, a clean break may well be deferred until children have completed their education or until a couple retire. In England too the approach to identifying what assets there are will be more thorough than that in France.  There is a strong emphasis on full and frank disclosure in England and if this is not provided inferences may be drawn and further investigations sanctioned.

What practical steps should a husband or wife take to protect themselves? A husband who thinks that he may end up being divorced by his wife may wish to steal a march and get on with the divorce in France first.  Timing is critical. Broadly, the person who issues the papers at court first will be the person who secures the jurisdiction; it is therefore essential to take local specialist legal advice and to act as quickly as possible. A wife who wishes to avoid being divorced in France must get on with the process in England as soon as she can if the English court has jurisdiction. This approach can be at odds with either spouse’s wish or hope to reconcile.

Domicile concerns

Prior to moving to France a pragmatic couple may decide to enter into a post-nuptial agreement setting out how they would like their assets to be divided if things do not turn out as they hope. Such an agreement can also deal with which country should deal with the divorce and which country’s law should be applied. At the very least they may wish to take advice as to what the legal position is on the basis that “forewarned is forearmed”. It can come as a big shock to find out that if your domicile has shifted to France and you have lived there for some time you cannot divorce in England unless you change your domicile and return to live there for six months.

Pre-nuptial agreements

A couple who are not married but thinking about it should also explore the legal impact locally in both countries. They may wish to enter into a pre-nuptial agreement. These are much more common in France than in England. However, recent cases in this country have meant that divorce lawyers in England are increasingly being approached by clients wanting a “pre-nup”, conscious that they may well be enforced. Couples who have different nationalities or who are living in a different country are often well advised to have a pre-nuptial agreement to afford them a better degree of certainty as to what might happen if their marriage broke down.  

Couples should also appreciate that if they move to France and it all goes wrong it is not necessarily the case that one parent can automatically bring their children back to live in England if the other parent does not consent. Children cannot be moved between countries unilaterally by one parent. It is not uncommon for there to be considerable disagreement as to where the children’s interests are best served by living in the event of a marriage breaking down.

It is therefore vitally important to consider the potential legal implications of moving abroad. Couples who are already living abroad, for whom, sadly, the dream is not the reality, should seek specialist advice promptly to understand the options available as it may not be too late to take protective steps should the unthinkable happen.

Sarah Whitten is a Partner specialising in family law at Charles Russell the law firm.