I am regularly asked by French clients whether their marriage contract (contrat de mariage) will be upheld if they divorce here in England. I am also asked to advise on the differences between a French contrat and an English prenuptial agreement – and which document is preferable. I have previously blogged on the main differences between the two documents which are significant, given that in England, the court adopts a discretionary approach on divorce in contrast to the French position which operates matrimonial regimes. In April this year, we got further clarity on this complex cross border conundrum, following a reported High Court case decided by Mr Justice Cohen, AD v BD  EWHC 857 (Fam). In this case, a French couple signed a marriage contract adopting a Separation de Biens matrimonial regime. The contract was signed in France the day before their religious wedding in France. The question for the English court to decide, within the couples’ English divorce some 8 years later (where the couple now lived), was whether this document was binding on them and the English court.
As is the norm in France, the contrat was signed before a Notary (Notaire) who “advised” both parties on its content. The English court found there was no good evidence from the Notary to show what advice was given.
Having heard evidence from both the husband and wife, the Judge did not give weight to their contrat de mariage. His decision was based, not on the fact that there was no legal advice or financial disclosure, but because of the following circumstances:
- This agreement had not been the subject of previous discussion between the parties
- It was presented to the wife on the day before the wedding when she was in a state of great turmoil (because her father was gravely unwell and died soon after the wedding)
- She had no chance to consider its contents. In particular, she had no chance to discuss it with her family and to ask their views on it
- The wife had given no thought before the meeting to the choice of marital regime and that she was unfamiliar with the concept
- She had no understanding and gave no thought to the implications of the agreement and its effect
This case reminds us of the importance of intention and understanding when signing up to any pre marriage agreement or contract. The Judge went on to decide the case applying English legal principles, rather than keeping the parties to a strict matrimonial regime and dividing their assets in accordance with that regime. This inevitably caused a very different outcome to the one which could have been imposed by the court had the pre-marriage agreement been upheld.
It is absolutely crucial that international couples who live in England / Wales take advice here about the validity of their foreign marriage contract, ideally pre marriage so that all of the circumstances can be considered and the most appropriate agreement is drafted. If you need advice on the options, please contact Che Meakins.