French marriage contracts will not 'simply be torn up' in England and Wales, says judge

The case concerned a French man, EJX, and a French-Lebanese-British woman, CMX, who met in France and subsequently married in July 1994 having signed the contract in the presence of a notary. The pair attended the notary's office only once, at a one-hour meeting at which they signed the contract, which was a standard separation de biens agreement as governed by Articles 1536 and 1541 of the French Civil Code. EJX now claims that the notary explained to them both the significance of the contract and how it would operate, but CMX argues that she has no recollection of what occurred and could not remember any discussions about entering the contract before they made the decision to marry.

The couple moved to London to live and work later in 1994 and have lived there ever since, EJX as a banker and CMX a marketing director. They have three children, the youngest now 17, but the marriage broke down during 2020 and the wife issued divorce proceedings in England and Wales, leading to a decree nisi in February 2021.

CMX has net assets of over GBP4 million, including a property in France, but applied to the EWFC for a financial remedy of GBP300,000 a year for herself, plus GBP135,000 a year for the children and a capital sum of GBP7 million. However, EJX drew the EWFC’s attention to the marriage contract, which he said had been arranged by CMX’s family. He noted that they ran their financial lives in accordance with the contract by keeping their assets apart and that CMX had retained the proceeds of sale of her business. He therefore asked the EWFC to deal with CMX’s claim on the basis of her needs, as the marriage contract prevented sharing of assets.

In England and Wales law, such an agreement affects the financial remedy only if it was made by both parties without coercion and with adequate advice. These criteria were set out by the UK Supreme Court in the case Radmacher v Granatino (2010 UKSC 42), which ruled that 'the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement'.

The EWFC judge, Moor J, therefore had to decide whether the couple's French marriage contract satisfied this test. CMX's lawyer argued that it did not, citing Mostyn J's comments in Kremen v Agrest (2012 EWHC 45 Fam) that 'it will only be in an unusual case where it can be said that, absent independent legal advice and full disclosure, a party can be taken to have freely entered into a marital agreement with a full appreciation of its implications.'

However, Moor dismissed this argument, noting that Mostyn's view was contradicted by King LJ in another case, Versteegh v Versteegh (2018 EWCA Civ 1050) and also by Moor himself in Z v Z (No 2) (2011 EWHC 2878 Fam). It would, said Moor, be sexist to assume that CMX was less likely to appreciate the implications of the marriage contract than Granatino (who was male).

Moor decided the marriage contract did indeed meet the Radmacher test. The French notary who oversaw the signing must have explained its implications to both parties, he said. There was no doubt whatsoever that it was freely entered into by each party, he said, and the lack of independent legal advice or full disclosure was not fatal. They did get advice from the notary, they were well aware of their respective positions at the time, and they would have had a full appreciation of the contract's implications because such contracts are very common in France without the need for independent legal advice or full disclosure. Moreover, he said, they had gone to the firm of notaries used by the wife's family.

'Those who sign marriage contracts must understand that it is a significant step with very important consequences', said Moor. 'These contracts will be enforced in France and will not simply be torn up in this jurisdiction.' He accordingly made a needs-based award to CMX (CMX v EJX, 2022 EWFC 136).

Sources

• BAILII