Expats can choose divorce laws

A NEW EU law has been passed allowing expat couples in France - and couples where one partner is French and the other not - to choose which country’s laws would apply should they divorce.

They can either choose the divorce laws of France, of the country where they previously lived or that of their nationality. The decision needs to be made before divorce proceedings begin - and could be registered as part of a marriage contract. The aim is to help prevent a “rush to court” in a bid to start proceedings in another country, as can happen now, said an EU spokesman.

The “Rome III” regulation was adopted by several countries including France. The UK opted out so expats living in the UK cannot apply this rule. An EU spokesman said: “A British couple married at home that lives in France for three years before one partner moves to Spain, would be able to ask French or Spanish courts to apply English law.”

Up until now - and what is still the case without applying the new option - French courts and law apply if a couple is ordinarily resident in France or one member is resident and starts proceedings here. However if the other partner, for example, returns to the UK for six-months or more and starts proceedings there before French proceedings begin, UK courts and law will apply.

Avocat Gerard Barron of Boulogne-sur-Mer said that if couples visit a notaire to draft a French marriage contract (which can be done at the start or during a marriage), he or she will now probably recommend such a clause, perhaps suggesting the choice of French law.

There may however be little take-up in other circumstances, he said. “I frankly doubt the spouses will either be interested in making such an agreement while they remain happily together, and they may be unlikely to agree on the appropriate forum if they are already separated or are on the point of being so.” There is also a risk that if one partner reestablishes UK residence, UK courts may ignore a choice of French law, because of the opt-out, he said.

The organiser of a support group for expats left in France after a break up, Waifs, Maria-Louise Warne (http://waifs2010.wordpress.com/) faced her own battle over legal systems when her husband returned to the UK, however, as with a male Waifs member she is currently helping, she was able to lodge proceedings in time in France.

She believes that as she was the main breadwinner, the UK courts, which often split 50/50, would have been more generous to her husband, whereas French ones look more closely at what belongs to whom. However she thinks it is best for couples moving here to follow the laws of the land, including the option for different marriage contracts specifying how property is owned. “I don’t see the benefit of going into married life thinking ‘where is best for the divorce? What will I get here, what will I get there?’”