In France, all aspects of the divorce are dealt with together; ending the marriage; dealing with the jointly owned assets; and resolving child arrangements. In England and Wales, each element is dealt with separately.
The divorce is solely an online exercise, issued by one spouse or both together and is no longer fault-based. It is on a set timetable, which in the ordinary course of events takes at least six months.
For the financial aspects, whereas in France it starts with establishing which regime was elected at the time of the marriage as that determines how the finances are resolved, in England and Wales, there is no process of electing a regime at the time of marriage. The couple may have chosen to enter into a pre-nuptial agreement, which would have a bearing on how the financial assets are divided, though is not determinative unless certain conditions were met at the time of entering the agreement. On the other hand, they may have entered into a post-nuptial agreement after their marriage on the occurrence of an event, such as receipt of inheritance, a child being born, unexpected change in circumstances etc. If not, then the starting point is establishing what is in the “matrimonial pot” and the starting point for its division is equal shares.
Unlike in France, there is no presumption of separate property, especially in the case of the family home – even if this is owned in one spouse’s name, it is given a special status which sees it being shared in the majority of cases. It therefore follows that the matrimonial pot contains assets in sole names as well as joint names.
The role of the solicitor is to assist the spouse in negotiations as to how the matrimonial pot should be divided and whether a departure from equality in one spouse’s favour should be pursued. If an agreement can be reached, this is then drafted into a consent order so that it becomes binding upon the parties and the financial claims associated with their marriage are dismissed.
In France, there are two separate roles which can assist with this; the Avocat (representing one party) and the Notary. The Notary is a neutral professional who can be appointed to deal with the division of assets, draft the agreement and also to carry out the property transaction, whether that is a transfer between spouses or a sale. The Notary can also assist parties neutrally to prepare pre- or post-nuptial agreements. The spouses can go to the Notary directly or they can each be represented by an Avocat and the Notary is approached by both Avocats on a joint basis. In England and Wales it is the role of the solicitor to prepare a pre- or post-nuptial agreement in England and Wales and for each party to receive separate legal advice.
In England and Wales, each spouse is separately represented by a solicitor and while they can attend mediation to be provided with assistance in reaching an agreement as to what will happen with the various assets, that is where the mediator’s role traditionally ends. The solicitors then take up the baton to draft the consent order so that it becomes legally binding. For the implementation of a property sale or transfer, the divorced spouses then instruct a different solicitor (known as a conveyancer) to deal with the property transaction. On a transfer of property between spouses, they each have a solicitor.
A further difference is with regard to child arrangements. The courts in England and Wales do not get involved unless there is a dispute between parents as to what those arrangements will be. They are dealt with entirely separately from the divorce and with the advent of the recent changes to the Family Procedure Rules, it is now compulsory to engage in non-court dispute resolution, in at least one of its many forms, before issuing court proceedings.
For international couples thinking of separating or divorcing, it is important to understand the different roles and expectations as well as the options available in terms of which jurisdictions are possible and most importantly, which jurisdiction may be strategically better for them. At Rayden Solicitors, our team of specialist family advisers with experience of Anglo-French separations can provide tailored advice on your circumstances so please do get in touch.
