As a French couple living in England, you may not be aware that, if your marriage breaks down, you have a choice to start a divorce process in either England or France. Likewise, an English couple residing in France could start divorce proceedings in France or England. It is crucial that you take early legal advice because as soon as the process is initiated in one country, you lose the ability to start in the other. We regularly advise clients in Anglo French divorce situations about the potential to have a court process in either England or France and the pros and cons of that choice. We know that the outcome in France is likely to be better for one party and the outcome in England is better for the other. The decision to start a process in either country has to be taken quickly and the choice for a client can therefore be emotionally fraught because of this time pressure.
Under the current European Regulations, if you are both French nationals residing in England, you could start a divorce process in either France or England. Similarly, if you are both English domiciled and you reside in France, you could start a divorce process in either country. Working closely with French lawyers, we will give you comprehensive and clear advice on your options and the likely outcomes. From our experience, we know it is not an easy or simple decision.
This so called“race to court” may well change following Brexit, depending whether or not the Regulation is adopted into national law. We will advise you on the timing of your decision to divorce in light of the current uncertainty about the future for Anglo French (and cross European) divorces.
Whilst advising on the likely outcomes in both countries, we also consider the practical aspects of your choice, which often can be just as crucial to consider as the financial outcome - including:
- Language barriers and implications – e.g. will it be necessary to have translators and at what cost?
- Cultural considerations – e.g. will an English Judge take the French aspects of the case into account? Will our Contrat de Mariage be relevant? Will a French Judge treat an English couple differently to a French couple?
- The court process itself – e.g. how many hearings will there be? Will I have to attend court? Is “no fault” divorce available?)
- Timescales - is the process likely to take much longer in France? Which country is quicker if we have an agreement?)
- Lawyer, court and other fees/costs – are the costs proportionate to the likely outcome?
- Likelihood and possibility of appeals – e.g. there is an automatic right to appeal a decision in France, which is not the case in England
- Litigation risks - in England, there is a range of possible outcomes and Judges have a large amount of discretion – how certain is the outcome in France?
- Your children – e.g. what are the options for resolution of disputes? Which country’s courts would hear the dispute? Can you move back to France or elsewhere with your children? Who will choose schools?
Fault based versus mutual consent divorce
A further consideration, and a new development in French law, is that divorce by consent (or “no fault” divorce) has become available in France since January 2017. In England, we still don’t have this option and a divorce petition as to be based on fault by the other party (the fault based divorce grounds are explained in more detail HERE and in one of our recent BLOGS).
In France, couples can now also agree the terms of their divorce by contract without the agreement being reviewed or approved by the French courts. The process is administrative and the couple doesn’t necessarily need to have a connection to France. These differences may represent clear advantages for clients and these new processes should be considered in your decision about where to divorce, although French lawyers are already pointing out traps and pitfalls in the new law which also need to be considered.