Couples relocating to France as part of Brexit arrangements should consider carefully in advance how the relocation will affect the arrangements between them and what steps they should take before the move. By becoming resident in France, there may be unexpected consequences such as deemed changes in asset ownership, succession issues and the position on any divorce. The assets available to any third party creditors or trustee in bankruptcy will also depend on the matrimonial regime (whether it is chosen or deemed). Anyone who is a trustee settlor or beneficiary of a trust should also take advice before moving to France.

Marriage contracts

All couples in France are deemed to be married under a matrimonial regime. This may either be by default or by choice (if they enter into a marriage contract). The marriage contract determines what each couple owns and is entitled to when the marriage ends, either on divorce or on death. A French marriage contract is very different to an English prenuptial agreement. A marriage contract is part of French law and there are detailed rules on how shares are worked out.

Depending on circumstances, English couples who move to France and do not have a prenup or marriage contract may be deemed to be married under the French regime of séparation de biens (separation of assets) which means that each owns broadly what is in their own name outright and half of what they own jointly. A matrimonial regime can be changed by agreement between the spouses by entering into a marriage contract which should be formally registered.

It is not certain that an English prenuptial agreement will be recognised and upheld in France (in the same way that a French marriage contract is not automatically enforceable in England). When drafting prenuptial agreements for French clients, we ensure that a French family lawyer is involved to make the agreement French compliant and has well considered jurisdiction clauses. Comparing a French marriage contract to and English prenup is like comparing apples and pears; prenups are not like French marriage contracts as they are focused on the outcome on divorce, rather than regulating how the spouses own property generally (in life and in death).

The best advice is to review your position before you move to France and then enter into a tailored French marriage contract appropriate to your situation. Likewise, French nationals moving to England should be aware that a French marriage contract is unlikely to be upheld in the event of divorce, so couples should enter into a post nuptial agreement to properly protect their positions in England.