The principle: the law of the first habitual residency
When the spouses, married after the 1st September 1992, didn’t sign any marriage contract, the article 4 of the Convention of La Haye signed the 14 march 1978 set up a principle: the applicable law to the spouses will be the law of the State where they establish their first usual residency after the marriage.
For instance, if English people marry in London and then live in France, the matrimonial regime of community limited to acquests (property acquired by spouses after marriage and that forms part of the common property, contrary to own assets) will be applicable. As you can see, no duration is required for this habitual residence.
If French people marry in France without marriage contract and then live in England, the English law will be applicable to their situation.
In the event of a divorce, you may know that English law is more favorable than French law to the less fortunate spouse.
The exceptions: the spouses common national law
Several exceptions exist. The common feature of these exceptions is that they designate the spouses common national law as the law applicable to the spouses, instead of the law of the place of habitual residency. These exceptions can only apply to spouses with a common nationality and only one.
Choose the applicable law by signing a marriage contract, a prenuptial or a post-nuptial agreement
We can write your marriage contract, your prenuptial agreement or your postnuptial agreement.
She will advise the spouses to choose an applicable law to their contract in order to limit complications in the case of a divorce. The worst situation is when many judges are seized for a unique conflict.
If you sign a prenuptial or a postnuptial agreement in a common law country, the French judge will recognize the validity of the marriage contract.
In you sign a marriage contract in France with a residency in a country of common law, it is necessary to respect formal and substantive conditions of English law to ensure the validity of this contract in England. So, if you just sign a marriage contract in France without respecting English law, the English judge will not apply this contract.
Héloïse KAWAISHI - Lawyer and mediator