The reform of family law is a constant source of debate in the UK, and in France it is very much the same situation. For example, a French parliamentary vote expected in January on proposals to open up the institution of marriage to gay couples mirrors the current debate in the UK on this issue.
Whatever happens moving forward, any legislation will not occur in a vacuum. Given the global village is continually shrinking and the fact marriages, civil partnerships, cohabiting relationships and personal arrangements (for example, property ownership and other shared assets in a relationship) increasingly cross borders, any change in domestic law is only one piece of the jigsaw. For British citizens living in France, dealing with the consequences of a relationship breakdown in a French court or arguing over French properties in the UK, a more holistic, universal approach across jurisdictions is needed.
Readers may be familiar with French family law but to recap; one of the biggest areas of differentiation between the UK and French systems is the way that the issue of children is treated. French law does not distinguish between legitimate or illegitimate children born out of marriage, out of a pacte civil de solidarité/civil solidarity pact (pacs), out of adultery or adopted: all are treated in the same way. They are all entitled to parental support even after the age of 18, and are entitled to inherit equally from each of their parents whether the parents are married or not. Some English parents of children living in France have been surprised to be taken to court by children in their 30s living in France and asking for their support!
Cohabitees who do not enter into any written agreement are not well protected under French law – the arrangement is viewed as a union ‘in fact’ and so does not open the right for compensation at any stage. The so-called ‘common law’ spouse is therefore as vulnerable in France as he is in the UK. Unless the partners work together or cause specific damage to the other, there will not be any obligation towards each other if they separate.
In contrast to cohabitation or 'concubinage', back in 1999 the Socialist government fought to impose the civil solidarity pact, a formal contract by which two adults of different or same sexes can organise their life together. It is registered by a simple declaration with the court clerk and terminated by a registered letter from one of the partners to the other; there are no ‘divorce’ proceedings. In their contract, the partners decide freely how much each of them will contribute and stipulates whether the assets bought during their union are deemed to be separated or deemed to be common.
Tax-wise, partners of a pacs are treated like spouses and there is no inheritance tax to pay by the survivor partner – if a specific will has been written. Any couple living in France can sign a pacs ‘as can French couple or bi-national couple at the French consulate’. English couples living in France can take advantage of the protection afforded in France by this legal device.
Whether owned by married or unmarried, different sex or same-sex partners, French property is submitted to French law in view of tax and inheritance and any attempt to submit it to another law may be seen as against public policy.
An exception may be made when enforcing a UK order deciding on the allocation of the property, although the order may be considered as infringing French public policy, and it is therefore paramount when dividing the French assets to make sure that it will be compatible with French law.
Despite its Catholic tradition, France's approach to same-sex unions and committed cohabiting relationships is quite progressive - more so than the UK. If a French gay marriage proposal is voted through when the vote comes to the French parliament in January, two English nationals of the same sex will be allowed to marry in France and therefore to adopt a child. Already citizens of countries where homosexual marriage is allowed have seen their rights in France, from the tax and patrimonial point of view, recognised in the same way as those of any married couple.
If the law is voted through, all the protection allowed by marriage will apply to spouses and will not discriminate between heterosexual and homosexual couples. This means that contribution, maintenance, compensation, divorce and inheritance status will apply to gay couples as it does already to any married couple.
Yet problems still arise when relationships cross jurisdictional borders. For example, if the marital property assets owned under a gay marriage are owned in a jurisdiction that does not recognise gay marriage then the party cannot rely on that jurisdiction to take the same view on how the assets should be divided as in France – surely illustrating why a global approach to legal reform in this area is so important.
Monique Fauchon is a partner at Fauchon Levy, which specialises in advising on personal and business affairs crossing over the English/French border