Amicable methods and international family law: the right reflexes

On June 3, 2024, in Paris, Les Avocats de la Paix and Humanéthic brought together Julie Auvillain, a lawyer and mediator, Laure Gaschignard, a notary, Stéphanie Ernould, a tax lawyer, and me around one question: do amicable solutions and international cases go well together? Two case studies served as the common thread, one to plan ahead, the other to resolve a dispute. Here are the key takeaways, with selected excerpts from the training materials.

Before negotiating: the questions to ask

Negotiating an international family agreement first requires knowing what each party would obtain before a court. Hence a series of questions: which aspect of the family situation must be resolved? Is there a bilateral convention between the countries involved, a multilateral convention, an EU regulation? Which court would have jurisdiction, which law would apply, and what does it provide? Above all: in which countries, and on what conditions, will the agreement or decision have to be recognized and enforced?

Divorce, support obligations, matrimonial property regime (régime matrimonial), parental responsibility: each matter has its own EU instruments and Hague conventions. Stéphanie Ernould added the tax dimension, too often overlooked: tax residence, reporting of foreign accounts, French real estate wealth tax, exit tax, tax treaties.

Planning ahead: a Franco-British couple before marriage

I presented the planning part, based on the case of a French business owner about to move to London and marry an American, with a house in London, an apartment in Paris and accounts in both countries. Planning ahead means avoiding the race to court, parallel proceedings and recognition difficulties, disputes over habitual residence and the automatic change of the law governing the property regime.

The tools are well known: prenuptial agreement or international marriage contract, international will, parenting agreement. They are strengthened by choice-of-court and choice-of-law clauses, a clause on the international recognition of the deed, clauses referring disputes to an amicable method, and court approval in both countries. So are their limits: the best interests of the child and international public policy. On the tax side, the couple would be resident in the United Kingdom, with specific points of attention for the American wife and for the husband’s company.

Resolving: a negotiated Franco-German divorce

Julie Auvillain addressed the divorce of a French husband and a German wife married in Berlin in 2010, with no marriage contract; the wife and children have lived in Germany for a year and a half. French and German courts both have jurisdiction; in a divorce by mutual consent, the spouses choose French or German law. But German law dissolves a marriage only by court decision: a divorce without a judge may not be recognized there. Hence the value of checking this point with a local lawyer and, failing that, having the agreement approved in a court divorce.

The property regime illustrates the automatic-change trap: German law of the first residence, then French law after more than ten years in France. For the children, the court and the law are German, since they live there, unless a court is chosen; if a child asks to be heard by the court, an out-of-court divorce is no longer available and the divorce must go through the courts (French Civil Code, art. 229-2). The certificate under Article 66 of Brussels II ter is essential for the agreement to circulate: without it, the agreement is neither recognized nor enforced in another Member State (Article 66(5)).

Succession and taxation

Laure Gaschignard then considered the husband’s death before the divorce. As a resident of France, his estate falls under French courts and French law. The German regime must first be liquidated, with a colleague in Germany, then the French community, before the estate itself; for assets located in Germany, a European Certificate of Succession must be obtained. Stéphanie Ernould supplemented each step with her tax analysis, including the taxation of the compensatory allowance (prestation compensatoire) and the Franco-German treaties.

Key takeaways

1. 1Know the court outcomeCompetent court, applicable law and what that law provides: the basis of any international negotiation.
2. 2Think recognitionAn agreement is only worth something if it is recognized and enforced in each country concerned.
3. 3Check the divorce without a judgeSome countries only know court divorce: court approval may be the safe route.
4. 4Plan ahead by contractChoice of law and court, recognition clauses and amicable clauses secure the couple’s plans.
5. 5Factor in taxationTax residence, treaties and the compensatory allowance all weigh on the agreement.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.