Law of the land
- Credit: Archant
Christophe Dutertre runs through some aspects of the law in France relating to children, marriage and much more
Have you ever noticed how treaties and conventions are always named after the place they were signed? The agreement of Yalta in February 1945, the treaty of Rome in June 1980 and more recently the treaty of Schengen all follow the pattern.
In private international law the reference is The Hague as so many conventions relating to this have been signed there. The origins go back to the first conference in 1893 which was convened by the Netherlands government. Ever since it has become a well-recognised inter-governmental organisation.
The role of the Hague Convention is to draft treaties or agreements in different fields of private international law. and there are more than 30 conventions in place, some ratified by France or UK, dealing with conflicts of law, contracts, trusts, national status and the protection of children or adults.
Here is a review of some of the most useful:
1 RELATING TO WILLS
Convention of 5 October 1961 on the conflict of law relating to the form of gifts within a will
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Article 1 of the Convention stipulates that a testamentary disposition (gift within a will) shall be valid if it complies with the internal law of one of the following:
a) the place where the testator made it
b) the state of which the testator was a national either at the time when he made the disposition or at the time of his death
c) the place in which the testator had his domicile either at the time when he made the disposition or at the time of his death
d) the place in which the testator had his habitual residence either at the time when he made the disposition or at the time of his death
e) so far as immovable properties are concerned of the place where they are situated
When a client wishes to gift a French house in his will he has the option to either put a clause in his English will or write a French will structured as stated by the French Civil Code.
The first question that a notaire will ask when dealing with the settlement of the estate is the validity of any will (i.e. has it been signed and does it correspond to one of the conditions set up by the Convention).
For instance, in the UK the normal practice is to have a typed document signed by the testator and witnessed by two people. French wills, on the other hand, don’t need witnesses but must be handwritten by the testator, dated and signed.
So, if you type your French will on a word document and sign it but don’t request a witness it will not be valid under French law (because it wasn’t handwritten) nor under UK law (because it was not witnessed).
2 RELATING TO MARRIAGE
Convention of 14 March 1978 on the law applicable to property regimes
You may be familiar with the Convention known as the Change of Marital Regime for a French property and some of you may have heard of the communauté universelle regime. This can apply either to your worldwide assets or to your French property only.
The basic example is where an English couple having children from their current marriage would like the French property to pass to the surviving spouse prior to the children.
As you cannot disinherit your children in France, for this to happen you must insert a tontine clause into the contract when you purchase the property. For civil and tax reasons, up to 27 August 2007, communauté universelle was the most appropriate because it was the only structure of ownership to avoid payment of tax between spouses.
When a lawyer draws up a contract he usually uses Article 6 of the Convention to change the marital regime for the property.
The spouse may designate one of the following laws:
1. The law of any state of which either spouse is a national at the time of the designation
2. The law of the state in which either spouse has their habitual residence at the time of designation
This Convention entered into force in France on 1 September 1992 and some of the articles set out in the Convention apply for couples married after that date.
However, I have to say that the Convention will be less effective from 2015 when European legislation regarding settlement of estates comes into force. After this date, any individual will have the right to choose which national law should govern the settlement of his worldwide assets.
3. RELATING TO TRUSTS
Convention of 1 July 1985 applicable to trusts and the recognition of them
This Convention has never been ratified by France and it is for this reason that we still have a problem when it comes to recognising trusts in France.
Nevertheless, we have made a huge step forward by introducing la fiducie (a new type of contract) into the French Civil Code and also by introducing a trust in the French Tax Code to recognise the effect of assets held in trust for beneficiaries.
There is no doubt that the European Commission will continue to improve the statutes related to trusts throughout Europe, and in light of this we will hopefully see a proper statute for trusts introduced in France in 2015 when the European legislation comes into force.
4. RELATING TO CHILDREN
The Convention of 19 October 1996 on jurisdiction applicable to law recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children.
This entered into force in France from 1 February 2011 and replaced the old Convention dated 5 October 1961, which was enforced in France from 10 November 1972.
The new Convention favours the law of the habitual residence of the child instead of that of their nationality.
The purpose of the new Convention was to improve civil protection concerning children regarding parental responsibility and contact. It is also there to improve public measures of protection of the child and the child’s property.
The Convention also aimed to unify the rules determining which country’s authorities are competent to take the necessary measure of protection for children.
Article 5 of the Convention stipulates that the authorities of the contracting state of the habitual residence of the child has jurisdiction to take measures directed to the protection of the child’s person or property.
Furthermore, an English minor inheriting a French property will apply Articles 16 and 17 to deal with the conflict of laws and apply English law regarding the acceptance of the estate by the parents.
The remaining question is the disposal of the property by the parents on behalf of the minor. Under the Law of Property Act 1925 a minor cannot have a legal interest in land. The question is whether or not the parents can act on behalf of the child to sell the property without involving the English court.
There is a debate between notaires and solicitors where some believe that The Children Act 1989 cannot apply and therefore a judge should authorise the sale of the property. This should be an English judge in accordance with the convention of Brussels II BIS dated 27 November 2003. However, the English judge could declare himself incompetent for this matter if he feels that a French judge will be more familiar with the procedure to dispose of the property on behalf of a minor.
Some will believe that there is no restriction under English law for a parent to dispose of the minor’s assets because they automatically fall into a trust and the parents are usually named as trustees. However, the question remains whether the beneficiaries of the estate should be the children or the trust.
5. RELATING TO ILLNESS
Convention of 13 January 2000 on the provision of international protection of adults who, by reason of impairment or insufficiency of their personal faculties, are not in a position to protect their interests
This Convention deals with the protection of an adult’s assets and his or her personal faculties in accordance with Article 1. The aims are:
a) to determine the state whose authorities have jurisdiction to take measures directed to the protection of the person or of the property
b) to determine which law is to be applied by such authorities in exercising jurisdiction
c) to determine the law applicable to representation of the adult
d) to provide for the recognition and enforcement of such measures of protection in all contracting states
e) to establish co-operation between the authorities of contracting states as may be necessary in order to achieve the purposes of this Convention
Thus far, only France, Germany and Scotland have ratified the convention. So if a Scottish person is under guardianship and has a property in France, the notaire dealing with the sale will not have to verify the regularity of the guardians’ appointment to act on behalf of the adult.
However, if the adult is English, then the notaire will have to ask for proof via a certificat de coutume, for example. A standard model of the certificate is in place to prove both the deputy’s authority and capacity to act on behalf of the adult.
The second measure concerns the lasting power of attorney or mandate when the adult still has his full capacity but wishes to anticipate any disability or mental health. The law applicable to this is that of the habitual residence. If you so choose, you can opt for your national law or that of your previous habitual residence although you must do this by a declaration in writing.
As you can see, there are many aspects of the law that can be resolved with one of The Hague conventions, and it can simplify and resolve any private international law problem.
Christophe Dutertre is a diplomé notaire at Blake Lapthorn Solicitors
Tel: 02393 530379