French Marriage Contracts and PACS: Legal Implications in England and Wales

Caroline Fell, an English solicitor and Partner and Head of Stone King’s Family Law team, answers questions about how French marriage contracts and PACS are viewed in England and Wales.

Q: My husband and I have a second home in France. We married in France around 5 years ago. We were encouraged to enter into a marriage contract and opted for a ‘séparation de biens’ marriage contract. We share our time between England and France. Our marriage is going through a tricky patch and I have been told that the marriage contract would be considered to be a pre-nuptial agreement in the UK. Is this the case and, if so, what does this mean if we were to separate?

A: Under the laws of England and Wales, a pre-nuptial agreement can be a relevant factor to be considered by a court in the event of divorce. A French marriage contract is a type of pre-nuptial agreement and may therefore be taken into account when considering how your finances are to be divided. However, a marriage contract or pre-nuptial agreement cannot override the English and Welsh court’s discretion and the court will wish to be satisfied of the following before upholding the terms of a French marriage contract:

a) There should have been no duress or pressure to enter into the agreement. As part of this, the courts usually prefer the agreement to have been entered into in good time prior to your marriage, preferably around 28 days.

b) You should both have been fully aware of each other’s financial circumstances.

c) You should both have received independent legal advice. This often does not occur with a French marriage contract as it can be one notaire who advises you both. However, this has been held to be sufficient in some cases.

d) The reasonable needs of the parties and any children should be met.

It is unusual for a French marriage contract to address all of the above points but, in spite of this, the English courts have upheld a number of French marriage contracts, particularly where the parties had been clearly fully aware of each other’s finances, they had been aware that it would apply on divorce and a notaire had explained the terms of the agreement to them in clear terms. A ‘séparation de biens’ contract may therefore be upheld, meaning that each party retains the assets held in their separate names, although additional financial provision can then be awarded to ensure that both parties’ and any children’s needs are met.

Q: When purchasing a property jointly with my partner in France, we decided on entering a PACS for tax purposes. I have now been told that this is viewed in the UK as a civil partnership. Is this correct?

A: In short, yes this is correct. A French Pacte Civil de Solidarité is a contract entered into by 2 unmarried adults, whether of the same or opposite sexes, to regulate their financial and tax affairs. In England & Wales, however, a validly entered PACS will be treated as a civil partnership and will therefore put the couple in the same position legally as if they had been married. A PACS therefore has a much wider-reaching legal impact under English and Welsh law than it does in

France. On the separation of a PACS couple, if dissolution proceedings are issued in England, partners can make a variety of financial claims as though they had been a married couple. The PACS contract can be treated as akin to a pre-nuptial contract as above provided certain criteria are met but anyone in this situation is encouraged to seek English legal advice to ensure that consideration is given to entering into an English post-partnership contract (similar to a pre-nuptial agreement) to mitigate the consequences of a PACS under English and Welsh law.