Divorce dissected: custody, finances, common mistakes for residents of France

How is jurisdiction decided in a cross-border divorce?

It depends on your starting point – in England, proceedings for children and money are separate, whereas in France, they take place together.

For money, we use what is called forum conveniens – the jurisdiction that is the most appropriate to deal with the divorce, so where you have the most assets. 

For children there is one big rule: where are your children habitually resident? 

Whether France or England, if the children have been settled in a country for several years (with school friends, after-school clubs, a support network, and so on), then they are considered habitually resident in that country – that is the country that is going to assume jurisdiction. 

What should you bear in mind when divorcing someone of a different nationality?

Make sure you know where the passports are – we often get a call from someone at the eleventh hour saying: “I think my spouse is going to leave the country with the children, the luggage is packed and the passports are gone.”

We can still do something at this point, called a port alert, to stop the names and passports at the border. But to do that we need the passport number. 

If I am acting for a person who wants to leave and is a victim of domestic violence, I would also tell them to document every little incident. 

Make sure you speak to your GP about it so you have a record of it happening, and call the police so that it is on a police record. 

What are the big differences between the French and English systems?

The view of the sanctity of marriage is different; in France we see it as a contract, but in England we are still battling against the preconception that you are not really in it if you do a prenuptial agreement.

When there is an international connection – one spouse British, one French – and they get married in England, I would advise them to sign a prenup stating which forum will apply in case of divorce. They can pre-elect the forum, and the same in France.

You get a better divorce if you have planned it in advance, and you will leave on better terms.

What mistakes can make divorce more expensive or complicated? 

Often the financially weaker party is completely isolated from the state of finances, and they have no idea where the money is. By that time it is too late, because the financially stronger party is not going to be very cooperative. 

You have to know where the money is, so be open and honest about your finances. 

Some people put everything into their business. They think the corporate veil will protect them and it is just not true – you can lift the veil in some circumstances.

Another mistake is not getting good advice. It is often useful to get advice from a local lawyer. We work a lot with French lawyers, and it is good to adopt a combined approach so you have covered all bases. Whoever you choose, get a lawyer who has international family law experience working between France and the UK.

How could someone best prepare if they are thinking about filing for divorce?

I am a big believer in mediation. Sometimes a less-than-ideal mediation outcome is better than going through one year and hundreds of thousands in fees and hating each other until the end of your days.

We have done so much to improve mediation in recent years; now there is child-inclusive mediation, lawyer-assisted mediation, shuttle mediation, so if you are a victim of domestic violence, you do not have to face your aggressor. 

It is really worth engaging with – give it a chance. It is much cheaper, less acrimonious and is quicker.

When should people act quickly, or take more time? 

Abduction

If your child has been abducted you have to act as quickly as possible. Do not try to reach an agreement, just file and then you can talk. 

The more you wait, the more the child is settled and then you have the defence of settlement. 

Finances 

Sometimes it is good to wait and let it drag if you are the higher earner. In time, the lower earner will get a new job and you can say they are independent, they do not need my money. 

If you are the lower earner and you need the money, then apply sooner so you can say “this was my standard of living when we were together”. 

Abduction sounds very serious. Do clients sometimes not realise that is what the legal definition is?

When you say the word often a client will say “But I haven’t abducted my child – they are my child, how can I have abducted them?”. They are not one individual person’s child, they are also somebody else’s child, and therefore what that parent has done is called parental abduction. 

It is a criminal offence, people go to jail. A parent in one of our cases was imprisoned last week for this offence.

What are the rules about the location of a child after a separation? 

The number one rule is that it has to be in a child’s best interest to move.

You have to be able to show that you are able to promote contact, even from a distance. Do not do anything silly like withdrawing contact. Be generous but not too generous – if you give your spouse 50/50 it is going to make your life harder because you are not the main carer.  

When it comes to relocation, going home cases tend to be stronger, because you have a community waiting for you. For example, consider a case where a French mother and an English father live in London, but the father’s family is based in the north of England, leaving them without a local support network.

If the mother plans to return to France, where her entire family lives, this presents a strong case, as she would benefit from a well-established support system and be surrounded by family.

Is there such a thing as an international custody order? 

No. Even if you are relocating, there will be a relocation order in one country which we mirror in another. 

How are they enforced?

If the French order allows the children to return to the UK and provides that the father has them for half of the summer, but the mother then refuses to let them go, the father would need to apply to have the order enforced in the UK.

In France, if it is the reverse, French courts are a lot stricter. They get the police involved whereas in England this does not happen so much. The punishment would be a fine. 

Does the age of the child affect custody proceedings?

Massively. If the child is over 16 the court is not going to do anything except in exceptional circumstances. The older the child is, the more of a voice they have.

How should someone prepare for a potential custody battle? 

Maintain the status quo. We always go with the status quo unless there is a good reason to depart from it. 

Get involved in your child’s life if you were not doing so before. Take them to school, do bath time, bedtime… If you want to play a role in your child’s life, do it before you apply, otherwise you just look like you’re doing it to get your application.

And do not write anything to the other party that you would not want a judge to see. WhatsApp messages are included in the court bundle, so do not trade insults, do not pressurise or be controlling – keep correspondence neutral. 

Any final thoughts?

Divorce is tough. It is probably one of the hardest periods of your life. Make sure you think about it twice before you do it, make sure you want to go through with it, and if you have to give a little away to avoid court, do it. 

It is often much wiser to compromise on a smaller point during negotiations than letting it derail the entire process and ending up in court.

It may seem tempting to stand firm on every issue – whether money, custody arrangements, or even something like who gets the car – but doing so can ultimately be far more costly, financially and emotionally.

People often enter negotiations with a hard stance, believing they’re ready for court if things don’t go their way.

In reality, court proceedings bring a level of stress, expense and disruption to your life that’s difficult to anticipate.

The legal fees alone can far outweigh the value of whatever is being disputed, and the emotional toll, loss of free time, and upheaval in your personal life are significant.

Sometimes, agreeing to let the other party have something minor can save you from much greater costs down the line. Principles are important, but they can be very expensive to uphold in a courtroom setting.