The "prenuptial agreement" or "prenuptial contract" is a contract, usually established prior to marriage, whereby the future spouses outline, with the help of their lawyers, all the consequences of the marriage but also the financial and practical consequences in the case of the dissolution of their union.
The prenuptial agreement in the United Kingdom and the United States
For a long time Common Law did not recognize prenuptial contracts.
The Supreme Court of England has finally admitted them and there is growing support in Wales and England to make the prenuptial agreement mandatory in order to settle the effects of divorce before couples even get married. However, these contracts thus far have no legal recognition.
In the United States, the laws regarding marriage contracts differ by state. As a rule, California law is considered the model. The concepts of schemes do not exist except for in the state of Louisiana. The spouses are therefore free to choose the type of marriage they wish to establish, as well as the effects in the event of divorce or death, with only the limits of respect for the law, good morals, and public order. In addition, the contract must be deemed fair to both parties.
• The current prohibition of prenuptial contracts in French law
French positive law has always encouraged a great freedom for spouses to contract their matrimonial regime.
However, French case law does not recognize the validity of a prenuptial contract. Indeed, internal public policy precludes the validity of these agreements because the compensatory allowance is not available. No such agreement can be concluded before the opening of the procedure.
Agreements relating to the pre-marital determination of the amount and the terms of the compensatory allowance are therefore without effect.
However, there are two types of exceptions.
• Certain legislative provisions admit the validity of certain clauses of a prenuptial agreement.
By way of example, article 372-2-11 1 ° of the Civil Code provides that "when deciding on the methods of exercising parental authority, the judge shall take into consideration, in particular, the practices parents had previously followed or the agreements that they had previously been able to conclude ".
• the French judge can recognize the validity of a "prenuptial agreement" established abroad
The divorce reform of 2004 set aside the plan to transpose prenuptial agreements into French law. In his report for the commission of the laws, Patrice Gélard considers this to be designed as potential guidelines, as he considers such measures to be interesting but not fully adpted to the current state of French society.
The notarial profession advocates for the transposition of prenuptial agreement into French law in order to anticipate the fixing of the compensatory allowance, which is currently considered unpredictable and a source of legal uncertainty.
Notaries advocate, however, a systematic recourse to the notarial act which would ensure the reality of the consent of the spouse.
The current trend is towards greater autonomy of wills. If, for now, French law will prohibits such agreements, it could have to evolve in the future.
• Advantages and disadvantages of introducing prenuptial contracts in France.
The disadvantages of prenuptial contracts relate in particular to the financial consequences of the divorce that may be significant (the payment of alimony, the allocation of a compensatory benefit to a spouse, etc ...) in the event of a divorce.
However, the conclusion of a prenuptial agreement has several advantages because it:
Provides the spouses with a lot of flexibility.
Provides for the amounts that may be allocated in respect of maintenance obligations between spouses in the event of separation and the consequences of a divorce before it occurs with the lawyers' councils and to reduce the divorce litigation accordingly. Having to negotiate the financial consequences of such a procedure in a climate of tension, before the judge, as is usually the case in France.
Protects the property of the spouses and to anticipate their distribution in case of separation of the couple. This is a factor of legal certainty for the spouses, who together agree on future rules that will govern their property relations. It reflects, in a balanced way, the respective expectations of the parties.