French nationals regularly consult me about the protective agreements available to them (and family members) in England. Prospective clients can be alarmed to understand that their French marriage contract is not automatically enforceable in England, in the event of a divorce here.
There are significant differences between a prenup and a marriage contract (contrat de mariage) and the legal systems of France and England have a very different approach to pre marital agreements. I work in collaboration with French lawyers and notaries to ensure your position is protected, when necessary, in both countries. If one (or both) of you and your partner is a French national, or you have assets in France, a cross border agreement may be necessary to ensure the agreement is relevant in both England and France in the event of a divorce therefore covering both sides of Anglo-French family law.
What are the main differences between an English prenup and a French marriage contract ?
|An English prenuptial agreement||A French marriage contract|
|Is intended to deal with financial provision in the event of a divorce, usually that provision is less than the court would order in the absence of a prenup||The agreement will make a choice of matrimonial property regime (e.g. separation de biens) which will apply during the marriage and on divorce|
|Is a bespoke contract between the parties which can make capital provision dealing with the division of property on divorce and set out spousal maintenance obligations||Will usually deal with death and insolvency as well as the matrimonial property regime which would apply on divorce. A strictly French contract cannot deal with maintenance obligations|
|Each party should obtain independent legal advice on the rights and obligations that are being altered by the agreement. There is no need to register the agreement; the parties’ solicitors will retain the signed agreement||Is drafted by a notary for a standard fee. The notary can advise both parties. The marriage contract will be sent to the Mairie before the civil wedding and noted in the marriage certificate|
|The agreement is subject to the English Court’s power to review; it will be upheld unless the court considers it unfair to hold the parties to it at the time of divorce||The English court may take account of a French marriage contract but, depending on effect of the agreement and the parties’ understanding of it, the court is unlikely to hold the parties to its strict consequences|
|In England, there are no matrimonial regimes and a prenuptial agreement is a bespoke contract which can divide property in all sorts of ways||If the parties do not elect of matrimonial property regime, a default matrimonial regime will apply (la communauté réduite aux acquêts)|
Versteegh v Versteegh 
The English Court of Appeal gave a recent decision on the effect of a simple Swedish prenuptial agreement, signed the day before the wedding and electing a separation of property regime. The crucial consideration for the court was the parties’ understanding of the agreement and their intentions. The Judge found that the wife had known and understood the impact of the agreement and the lack of legal advice was not fatal. The court gave effect to the intention behind the agreement, which in the Versteegh case was to protect the husband’s pre marital business assets. The impact of a prenuptial agreement will always be within the English court’s discretion but where a party has a full appreciation of its implications and has had all the information material to the decision to enter into it, the court will give effect to the agreement unless it would be unfair to do so.
Which agreement do we need?
This will depend on your circumstances, where you are going to live, where your assets are located and what you want to achieve by signing the agreement. There are also costs considerations because a comprehensive English agreement requires each of you to have independent legal advice and is likely to cost more than a simple marriage contract. Lawyers will need to give detailed advice to each of you about what rights are being given up by signing the agreement. If you are living in England, an English prenuptial agreement (provided it is not unfair) is likely to be upheld to protect assets. Relying on a simple French or other foreign marriage contract is risky; it may not be enforced strictly and it may not achieve what you want it to if the divorce proceeds in England.