Case study #5 - International divorce: determining habitual residence
In the context of international divorce, the question of habitual residence has significant impacts on many decisions. Free choice of the parties involved? …
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A French couple is living in the United Kingdom. Following Brexit, they wish to return to live in France. What happens to their matrimonial regime and the law that applies to them? And if it was us?
Et si c'était nous ?
A little lesson in international family law applied to real life, by Sylvie Mombellet.
After getting married without a contract in France in 2010, this couple decided to move to England without choosing the law applicable to their matrimonial regime. By this absence of choice, they are automatically linked to the English regime, considered a separatist regime.
Even though European Regulation EU No. 2016/1103 of 24 June 2016 puts an end to the rule of automatic mutability of matrimonial regimes (provided for in Article 7 of the Hague Convention No. 25 of 14 March 1978), French private international law maintains an exception for spouses married between 1 September 1992 and 29 January 2019.
For our couple married in 2010, automatic mutability still exists. Having not expressly chosen English law, they will be automatically subject to French law upon their return to France. They will therefore depend on the French legal regime of community of reduced property, and all their assets will fall de facto into the "common pot".
Therefore, if one of the spouses subsequently decides to buy a property alone (such as a rental apartment), this property will be subject to the community even if that spouse financed it with their personal income.
How to remedy this? Here is the "international family law" recommendation of your lawyer Sylvie Mombellet:
Preventing automatic mutability of the regime from taking effect is possible! Provided you act in advance! Because in this case, you must designate English law, the law of residence of the spouses (Article 22 of the 2016 Regulation), as the applicable law, with retroactive effect from the day of marriage. The spouses can then keep the regime of separation of property until the dissolution of their union, whether it occurs by divorce or death.
Without this prior step before moving, the spouses will see the automatic mutability of their regime apply to the community of reduced property, which applies by default in France. Upon the dissolution of their marriage, it will then be necessary to settle two matrimonial regimes: that of the separation of property, resulting from their "English period", and that of the French community, applied since their return.
