Judge considers prenuptial agreement in divorce of French couple living in London

Divorce|December 22nd 2014

The High Court has considered the implications of a French-style prenuptial agreement – a contrat de marriage – which a French couple living in London signed just two days before their marriage.

The couple in Y v Y divorce in May last year after 22 years together- and when they married back in 1991, they had already been living together for two years. They went on to have three children together, each of which attended French schools, and the majority of their married lives have been spent in London due to the husband’s work in banking.

By 2007 the marriage had begun to encounter difficulties and the wife first filed for divorce in 2007. The couple later reconciled before the marriage finally came to an end last year. At the time of the recently published judgement, the former couple were still living under the same roof but the husband was due to move out shortly afterwards.

Following their divorce, the husband’s counsel argued that the wife’s financial claims subject to the strictures of the contrat de marriage, even though the agreement had been signed in France before the couple moved to England. Not unnaturally based on the provisions of French law, the agreement set out the division of assets between the couple.

In a detailed High Court ruling, Mrs Justice Roberts explained:

“Under its terms, the legal presumption under French law was that each would keep his or her own assets, whether in existence at the time or subsequently acquired, separate and free from any claim by the other unless jointly acquired and specifically held in joint (or common) ownership.”

If they had remained in France the agreement would have legally binding. In England and Wales, by contrast, prenuptial agreement do not currently have a fixed status in law and are only taken into consideration by the courts. Earlier this year, however, the Law Commission did recommend the introduction of binding prenuptial legislation.

The husband’s counsel cited the much discussed Supreme Court ruling in the 2010 case of Radmacher v Granatino in arguing that the couple’s agreement should “a central and magnetic prominence in terms of its pull towards a financial outcome for this couple”.

However, the Judge concluded that the wife had had a more “emotionally intuitive” approach the marriage than her husband and that while she had understood the function of the contract when she signed it, she had not had:

“..any proper or informed understanding of the fact that, were the marriage to founder many years down the road and regardless of what their circumstances might be at the time, she would be confined to a financial outcome which resulted in a significant divergence of equality between the parties.”

This is a judgement which cogently sets out the state of the current law in relation to prenuptial agreements and it is well worth a read. We can’t do it full justice in such a short report.

However, there is one other interesting point, one that readers of this blog often enquire about. To whom should child support be paid whilst the children are away at University? This is dealt with by provision of a “roofing allowance” to the parent where the child is usually based. Her Ladyship awarded £20,000 per year plus school fees for the youngest child (the older two are already in their 20s) – a reasonable sum for a wealthy couple living in London and a useful monitor for similar cases. At tertirary stage – i.e. university – the roofing allowance would be set at £5,000, with their father meeting all their other needs direct.

Read the full judgement here.

Photo of the London Eye by Christine Matthews via Wikipedia under a Creative Commons licence

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Comments(7)

  1. Luke says:

    ‘the Judge concluded that the wife had had a more “emotionally intuitive” approach the marriage than her husband’
    ======================================================
    .
    Which is Judge-speak for “as a woman she can’t be held accountable for her actions”. That’s the value of a Prenup in reality in England – toilet paper…

  2. Nordic says:

    Luke,
    This judgement goes far beyond simply reversing Radmacher. Every marriage in France is subject to a contrat de marriage without which you cannot obtain a marriage certificate. There are 3 basic regimes for how assets can be dealt with (child and spousal payments are not part the contract). From memory they are (1) share all assets equally including what is brought into the marriage,(2) share only the assets created within the marriage or (3) retain separate assets both before and within the marriage. This couple obviously elected the last option.
    .
    Hence, the judge did not just overturn a normal prenup (a la Radmacher), she overturned a statutory requirement which underpins every marriage in France. It is also something everybody understands (I have lived in France and am married to a french national). The impression created in above summary of an emotional woman unwittingly signing the dotted line is misleading. It is strange that she accepted to marry under this particular asset regime (normally for second marriages), but that was her choice. And even under this regime, she would have obtained some £3-4 million according to the judgement – hardly deep poverty.
    .
    The purpose of the French regime is obviously to allow couples to know what they commit to when marrying and know that it will be upheld on divorce. Most other European countries have similar regimes. Their primary purpose is to prevent litigation about basic asset division thereby protecting the couple against the tremendous financial and emotional damage such action causes. Unless of course you unwittingly arrive on these shores and years later find yourself and your family exposed to the primitive and destructive process that passes for financial relief “law” here. A process which only serves to feed the vested interests of, what by European standards is, a grotesquely bloated family law industry.
    .
    This insulting and discriminatory judgement replaces law with lawyers.

  3. Andrew says:

    They were French nationals, domiciled in France, they married in France, they complied with French requirements by choosing one of the options and the one they chose was Nordic’s option 3.

    The French system prefers hard evidence over “emotional intuition” – but because they got divorced here she was allowed (in fact encouraged) to put her intuitions ahead of what she had signed.

    It is arrogant. This was a French marriage and the judge should have treated the French connection as dwarfing all other considerations and given effect to the contrat de marriage.

  4. Nordic says:

    Andrew,
    Contrast this judgement with the firmness by which a U.K. army recruit is held to a contract they signed as a minor. Uniquely in the western world, the UK army recruits from the age of 16 (albeit no combat action before 18). Following a 6 month grace period, the contract locks in until the soldier turns 22. By the time he finds himself in a combat zone and maybe decides this is not for him, he is bound for another 4 years under a contract he signed before turning 18. Unless army permission is obtained, breaking this contract is desertion.
    .
    When the army needs canon fodder, we are willing to hold people to contracts they signed as a minor. When the legal industry needs canon fodder (for litigation), we happily ignore contractual commitments made by informed adults. As usual, we got things the wrong way round.

  5. Wedding Prenuptial Agreement Uk | Prenup Information says:

    […] Judge considers prenuptial agreement in divorce of French couple living in London – The High Court has considered the implications of a French-style prenuptial agreement – a contrat de marriage – which a French couple living in London signed just two days before their marriage. The couple in Y v Y divorce in May last year after 22 … […]

  6. Declaration of Disclosure says:

    Thanks a lot and keep sharing the information. Keep updating the information for all of us.

  7. JamesB says:

    Well, no wonder marriage rates are low with judgements like this and the dodgy law we have in E and W jurisdiction. Please can we move the Scottish system so my children can get married and be ok.

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