2023-04-28 15:22:49
Many people still believe in the American dream and leave to emigrate to the United States.
As a dream is more pleasant to live with the loved one, many find themselves in the situation of our case study below:
Mrs. A of French nationality and Mr. B of American nationality plan to get married soon in France. They then plan to settle in the United States without having yet determined the State.
Prior to their union, they wish to establish a marriage contract in France.
We interviewed the French notaries who tell us regarding it:
Matrimonial agreements, most of which bear the name of prenuptial or postnuptial agreement, are common practice today.
Before getting down to painting the composite portrait of the ideal matrimonial convention for the American system, two observations must be made:
The first observation what we can do is that it is complicated to establish a general framework1 of matrimonial conventions in the different countries of the Common Law system in general and even within the United States because of the plurality of federal States and therefore of the applicable standards.
Remember that the USA brings together 50 federated states and that there is a juxtaposition of standards.
While the United States has supranational standards at the federal level, each federated state has, in certain areas, its own autonomy and itself enacts standards applicable within its borders. Such is the case of family law which comes under the law of the federated states (State law).
Also, there may be as many laws, practices and jurisprudential assessments of matrimonial agreements as there are federated States.
The Uniform Premarital Agreement Act (UPAA), enacted by the National Conference of Commissioners on Uniform State Laws in 1983, attempted to unify the rules of substance and form of matrimonial agreements between the federated states.
But only twenty-seven States 2 have so far adopted it, each with its own variations.
The second observation is that the United States being part of the so-called common law legal system (often opposed to our Latin legal system), the notion of matrimonial regime is little known to this system.
By adaptation of rights, it is often considered by French jurists that the system of distribution of property ownership between spouses is a separatist regime.
In reality, this is a risky shortcut and there are many disappointments when the marriage contract drawn up in France comes up once morest the test of the American legal system.
1 Practices and case law differ according to the United Kingdom and Australia, for example
2 Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota , Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia. For a comprehensive study: The Uniform Premarital Agreement Act and Its Variations Throughout the States, Journal of the American Academy of Matrimonial Lawyers, Vol. 23 , 2010 ,
We will not discuss the substance of the agreement, leaving the spouses to take all advice from their notary on the choices of laws and jurisdictional skills available to them.
However, as a reminder, if the European Union has adopted regulations allowing different choices of law by the spouses in the event of the occurrence of a divorce, the United States is obviously not bound by this body European rules.
Also, in addition to the European rules relating to the substantive and formal conditions of these choices of law and jurisdiction, the drfollowing of the matrimonial agreement must keep in mind that his contract is to be produced in the United States. He must therefore worry regarding the reception by the courts of this country and the margin of appreciation that the American judge has on the agreements between the spouses.
Indeed, the American judge has a broad power of appreciation known as “equitable distribution”. This theory allows him to distribute the property between the spouses on the occasion of a divorce according to what seems fair to him and without consideration of the origin of ownership of the property.
Also, the forecasts of the spouses, in their pre-nuptial (or post-nuptial) agreements, can be partly or totally modified by the judge.
Beyond this power that the American judge has on his territory, his decisions can have repercussions on our own territory, place of establishment of the marriage contract in the practical case which interests us.
Indeed, the judgment of the first civil chamber of the Court of Cassation of December 2, 20203 was not only yet another illustration of the power of Equity of the American judge but also highlighted that the French marriage contract, challenged by the American judge, is likely to be deprived of any effect in France, the country where it was nevertheless born.
As soon as the foreign decision (American in this case), setting aside the French marriage contract, is regular, and that it has ruled on the fate of the assets of the spouses or ex-spouses, it must be applied in France, regardless of It is therefore important that the French marriage contract has been set aside: the mere setting aside of a notarial act bearing the marriage contract is not contrary to French international public order.
The discretionary power of the American judge is therefore important, not to say considerable. If he can take into consideration the agreement presented by the spouses, it is still necessary that this one is satisfactory on the form.
Because to hope that the agreement of the spouses is invited to the debates before the American judge, correct dress is required and the dresscode of the matrimonial convention must be strictly observed:
Legal advice per spouse: the common law system is quite wary of contracts received by a single notary. Short of demonstrating a split personality, it is almost unthinkable for common law judges that a single man might advise each of the parties in their best interests without inevitably taking sides for one or the other. other of the spouses or future spouses.
It is therefore recommended to have recourse to two notaries or a notary and a lawyer for each spouse, who will have been able to advise each of the spouses and lead to a contract reflecting the negotiation process.
3 Cass. Civil. 1st December 2, 2020, n°18-20.691. “A decision rendered by a foreign jurisdiction which, by application of its national law, refuses to give effect to a marriage contract received in France, is not in itself contrary to the substantive French international public policy and cannot be excluded only if it confirms in a concrete way, in the case in point, a situation incompatible with the principles of French law considered essential”.
It should be noted that the Californian family law code has admitted the possibility of waiving independent advice (such as recourse to the French notary, joint and impartial counsel of the parties) on the condition of being expressly mentioned in a document separate from the marriage contract. and unambiguous 4 .
Le « financial disclosure » ou « full disclosure »5 : the marriage contract must contain a detailed presentation of the respective assets of the parties and their income. Indeed, how to establish a sincere and fair agreement if the spouses are not transparent regarding their situation? Hiding one element from the other might undermine the cogency of the agreement and allow the other to invoke this loophole when the time comes 6 .
Mention that the contract will apply in the event of divorce: This may seem obvious to us, but the title “marriage contract” may suggest to the American judge that this agreement is only intended to apply to the relationship between the spouses and not between the (future) ex-spouses. . It may be preferable to replace the term “marriage contract” with the term “matrimonial agreement” in order to avoid any ambiguity as to the destiny of this contract.
It is therefore necessary to clearly express that the intention of the spouses is that this convention applies in the event of divorce and that they wish to give an enforceable character to their contract, including in Common Law countries.
The reflection period: Like any contract, this one must be concluded without coercion or abuse of a dominant position. Also, one of the ways to guarantee the good conditions of formation of this matrimonial agreement is to leave at least a period of three weeks for reflection before the celebration of the marriage (or even the conclusion of the agreement)
The translation : In general, when one of the parties is required to contract in a language different from his mother tongue, the notary must worry regarding the understanding of French by said spouse.
It should be remembered that if French is not the mother tongue of one of the contracting parties, the notary must offer him the assistance of an interpreter, failing which his liability for lack of duty to advise would be engaged 7.
4 These criteria were added to the California Family Code in 2001, following two decisions of the California Supreme Court in 2000, Marriage of Bonds, 5 P.3d 815 and Marriage of Pendleton and Fireman 5 P 3d. 839.
5 California now requires “full disclosure” of everyone’s assets. That is to say that each future spouse must declare to the other absolutely everything he owns.
6 The Michigan Court of Appeal held that the marriage contract drawn up in Germany before a notary was not valid because it did not contain a “sufficiently detailed” listing of the property of the future spouses (Estate of Halmaghi, 457 NW 2d 356, 359 (Mich. Ct. App. 1990).
7 Cass. Civil. I, May 13, 2014, Appeal No.: 13-1350
Of course, if the spouse in question does not speak French, the use of an interpreter is not an option.
In terms of marriage contracts, intended to be produced in the United States, this translation requirement is strictly assessed. If one of the spouses is of a different nationality from the language in which the contract is drawn up, he must in any case benefit from a full translation of the draft contract upstream and advice must be given to him in his language. maternal.
In our case, because of the American nationality of Mr. B, it seems necessary to establish projects in English and to provide the proof.
A fair deal: As we recalled at the beginning of our remarks, the American judicial system is committed to the principle of fairness. Also if the agreement leads to an “unconscionable” result, that is to say “unfair”, “unreasonable”, it is obvious that the judge, in the name of equity, will have no qualms regarding setting aside the spouses’ agreements. .
Caution is therefore required when it comes to marriage contracts involving an international dimension and particularly when a country of the common law system enters the equation.
It cannot therefore be too strongly advised to future expatriates to seek all the necessary advice regarding their personal situation from their notary beforehand.
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