8 Considerations for French Nationals Divorcing in England & Wales

Introduction

If you are a French national with connections to England and considering a divorce, both the French courts and the English courts could potentially hear your divorce. In some circumstances, you may need to make a choice and it is important to bear a few points in mind and take legal advice before starting proceedings in either country.

We have set out below the most important differences between a divorce in England and a divorce in France.

1. Your French marriage contract will not automatically be enforced by English courts

In France, there are matrimonial property regimes which, among other things, determine how assets are shared on divorce. The default regime is the communauté réduite aux acquêts but it is possible to choose a different regime (séparation de biens, communauté universelle or participation aux acquêts) by signing a marriage contract. These contracts are fairly common and, except in very exceptional circumstances, always enforced by French courts.

On the contrary, the concept of matrimonial regime does not exist in England and Wales and French nationals are often surprised to discover that English courts might not apply their marriage contract.

The judge first has to check whether you and your spouse understood the legal consequences of the contract and were not put under pressure to sign it. If these conditions are met then, in principle, the judge will give effect to the contract. However, if the judge is not satisfied that the needs of one party are met, they will disregard the contract.

2. There is only one ground for divorce in England and Wales

No fault divorce came into effect in England and Wales in April 2022. The divorce application now only has to state that there has been an irretrievable breakdown of the marriage and it is not possible to place any blame on your spouse. Except in extremely limited circumstances, your spouse cannot contest the divorce.

On the contrary, there are still 4 grounds for divorce in France and allegations against your spouse are required for some of them:

• Divorce by mutual consent;
• Divorce for fault;
• Divorce for permanent alteration of the marital bond;
• Divorce for acceptance of the principle of the marriage breakdown.

3. The English system is designed to encourage settlement

The English system is pretty flexible. Even if court proceedings have been introduced, it is possible to settle at any time by filing a consent order. Going all the way to the final hearing (which is the final stage of the financial proceedings) can be very expensive, which encourages an earlier financial settlement.

Most cases settle at the FDR stage, which is the hearing at which a judge gives an indication (non-binding) of how they would sort out the finances.

4. Divorce, finance and children proceedings are separate in England and Wales

Whereas the French process deals with the divorce, finances and children at the same time, the English process separates these aspects.

You can start divorce proceedings by filing a sole or joint divorce application. This will start court proceedings limited to the divorce itself, which has its own timeline.

If you want the court to sort out your financial arrangements, you or your spouse will have to file a form A to start financial proceedings.

English courts consider that parents are best placed to sort out arrangements regarding their children and are not involved unless you and your spouse disagree and make a separate court application.

5. Financial disclosure requirements are quite extensive in England and Wales

In the event of court proceedings and very often as part of amicable negotiations, you and your spouse will each have to complete a financial statement for a financial order known as ‘form E’. It is a lengthy document designed to capture all your assets, incomes and needs, in the UK and worldwide. You will also have to provide supporting documents, such as your last 3 pay slips, bank statements covering the last 12 months for each bank account, property and pension valuations, etc. This initial exchange of financial information will usually be followed by questionnaires and updating disclosures.

No such form or list of supporting documents exists in France, where financial disclosure is less formal.

6. English courts can make various orders regarding your finances

English courts have extensive powers in financial matters and can make various orders in relation to your assets and incomes and your spouse’s:

• Order for transfer or sale of property;
• Pension sharing order;
• Lump sum order;
• Spousal maintenance order / child maintenance order.

In France, the judge will order the liquidation of the matrimonial property regime and may order the payment of a compensatory allowance (prestation compensatoire) from one spouse to another and of child maintenance. However, French judges do not have the power to share pensions.

7. There is no automatic right to appeal in England and Wales

Contrary to French law, there is no automatic right to appeal under English law. If you are not satisfied with the financial order pronounced by an English judge, you will have to get permission to appeal and there are limited grounds.

8. You will have to navigate a legal system in a foreign language

Navigating a legal system in a foreign language can be challenging in such an emotional time as a divorce. That is why we recommend that you contact our Victoria Plisson, who will be able to advise you in French and explain the differences with the French system. If there are proceedings in France, she will be able to coordinate with your French lawyers and understand the legal documents involved.