Anglo-French Aspects Of Divorce (Guillaume Barlet-Batada)
Wednesday, December 14, 2016
Guillaume Barlet-Batada is a London-based French lawyer, consultant and head of the French Desk at Cubism Law. Read his article below that has been written with Me Bérangère Sautai, regarding the Anglo-French aspects of divorce.
With many French married couples living in the UK and UK married couples living in France, divorcing in an international context complicates further an already difficult decision and many issues arise from such delicate circumstances.
The first and essential question is to determine which jurisdiction should be competent to issue divorce. In practice, the spouses have a choice between:
- The spouses’ habitual residence or the habitual residence of one of them if they reside in different jurisdictions,
- The jurisdiction of the nationality of both spouses or the ‘domicile’ of both spouses in the case of the UK and Ireland.
For instance, a French couple living in London may either issue divorce with the Courts of England and Wales or the Courts of France.
In the case of an English couple having lived many years in France, one of the spouses may leave and return to the UK. Providing that the spouse has been back in the UK for at least six months, he or she will be able to apply for a divorce in either jurisdiction.
If the French jurisdiction is seized, the Juge aux Affaires Familiales is competent. In England and Wales, a judge in the Family Courts will deal with a divorce.
The choice of jurisdiction is critical because, depending on the applicant’s personal situation, it will be in his or her best interest to either seize the French or the English jurisdiction. This is why at this early stage, seeking advice from a specialised lawyer is important.
It is essential to act quickly as the first jurisdiction seized by one of the spouses will be the only one competent to deal with proceedings for divorce and its financial consequences.
If a French couple has children residing in England, the English jurisdiction will be competent to rule on parental responsibility and child maintenance. However, if the French judge was established to pronounce the divorce, he or she will rule on all the mesures provisoires (interim measures which will apply until the divorce is entirely settled), including the residence of the children and child maintenance.
If a couple owning assets in France divorces in England, it is advised to anticipate the way the financial consequences will be defined and determined in the proceedings for them to be executed in a valid and efficient manner by the French authorities. For example, the transfer of ownership of half of a property owned jointly by the couple may have legal, tax and administrative consequences which should be agreed before the divorce is pronounced rather than after.