Navigating French-English Divorces: Dual Nationality Children & Cross-Jurisdictional challenges

While it’s often said that London is France’s sixth largest city due to its large French population, official figures suggest it ranks closer to ninth or tenth. Nonetheless, estimates from the French Consulate and other sources suggest that up to 250,000 French nationals may be living in the capital, making London a key hub for Franco-British families navigating cross-border legal issues.

International divorces are increasingly common among UK residents, especially where one or both spouses hold dual nationality or have children with cross-border ties. Specialist advice is essential to navigate the complexities when these marriages break down. This blog outlines key legal contrasts, the challenges of cross-border parenting, and practical steps for navigating a divorce across jurisdictions.

Understanding Cross-Jurisdictional Divorce

Cross-jurisdictional divorces occur when spouses have connections to another country, whether that be nationality, assets or residency. The difficulty that arises is the potential for more than one legal system to govern the divorce. For example, in French-English divorces, both French and English courts can have jurisdiction to hear the divorce.

Jurisdiction is central to these proceedings, as it determines which legal system applies, and can significantly affect the outcome. Fundamentally, this is down to the differences between the French civil system and the English legal system: “French courts follow a formulaic approach to financial division, while English courts have wide discretion. This can lead to vastly different outcomes depending on where proceedings are issued.”

Therefore, a culture of ‘forum shopping’ exists, whereby parties will chose the jurisdiction likely to benefit them. The choice of country can significantly affect outcomes such as financial settlements and child arrangements. Typically, “England is often seen as more generous to the financially weaker party”, making it a popular choice for some spouses.

Key legal differences between England and France

There are five key legal differences between France and England: Grounds for divorce, financial settlements, child arrangements, procedural structure, and pensions.

Grounds for Divorce

Since April 2022, England has adopted a no-fault divorce system, meaning that the only ground for divorce is irretrievable breakdown of the marriage. By contrast, France retains four distinct grounds for divorce. Some grounds require proof, making the process more adversarial than England’s no-fault system.

Financial Settlements

English Courts have a reputation for giving generous settlements for the financially weaker party. For example, where one spouse has sacrificed career progression for childcare. This is due to a discretionary approach to financial division, where judges consider factors like contributions to the family, future needs and earning capacity.

France operates under matrimonial regimes which are usually defined by a marriage contract. These will determine how assets are split, therefore, there will not be any discretion available to the judge. England “do not operate a system of matrimonial regimes. A foreign marriage contract will not be automatically enforced and upheld in English divorce proceedings.”

Child arrangements

In England, child arrangements are handled separately from the divorce, with decisions based on what is deemed to be in the child(rens’s) best interests. By contrast, French courts handle divorce, finance and child arrangements all together. The principle of autorité parentale places the onus on both parents retaining rights and responsibilities unless in exceptional circumstances.

Procedural structure

In England, proceedings are separated, and financial disclosure is extensive, requiring Form E and supporting documents. French divorce proceedings are unified, and financial disclosure is less formal. Another procedural difference between the systems is the appeal process. In England, there is no automatic right to appeal, permission must be granted. France has an automatic right to appeal, and proceedings are conducted in French.

Pensions

In England, courts can issue pension sharing orders, provided one party is domiciled in England & Wales. In France, however, pensions are not shared. Instead, they are considered when calculating the prestation compensatoire (compensatory allowance).

Dual Nationality Children

Dual nationality children bring another element of difficulty during French-English divorces. Parents must consider practical and legal complexities, such as schooling, language, cultural differences and how habitual residence affects jurisdiction.

Unfortunately, cross-jurisdictional families carry legal risks such as child abduction. The Hague Convention 1980 is an international treaty designed to protect children from the harmful effects of abduction and retention across international boundaries. Ultimately, it’s goal is to determine what arrangements would be best for a child and often this means maintaining the status quo of existing child arrangements and discouraging parents from seeking out more favourable child arrangements in different jurisdictions. The convention outlines the need for prompt return of the child to their home country, jurisdictional integrity for the courts in that country, and central authorities as designated by the UK and France. Parents must be aware of the risks of taking children from one country to another, once parties are separated and seek legal advice if this is unclear.

Practical Steps for Parents

Ultimately, consulting solicitors in both countries is vital for parties navigating cross-jurisdictional divorces. As in any divorce, communication and mediation are crucial to maintaining civility and co-parenting relationships. Documentation is also key. Keep passports, birth certificates and court orders up to date. Finally, ensure that travel consent is talked about in the proceedings to avoid the risks.

Conclusion

The differences between the two legal systems, procedural, legal and cultural, can make cross-jurisdictional divorce particularly challenging. However, solutions exist, and ensuring specialist advice early on is key in maintaining relationships and stability for Franco-British families.

If you need advice on child contact or any other family law matters in England and Wales only, please contact Sharan at Gilson Gray for a confidential discussion.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.