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Slater and Gordon lawyers have specialist divorce lawyers and experts in French property and succession law. Call us on freephone 0800 916 9083 or contact us online.
Divorce is always a stressful and emotional time. Complications can arise when agreeing on and transferring property, made even harder when the property is located overseas and you are working with a different legal system. Slater and Gordon’s International Property Lawyers are here to help with your property transfer at this difficult time.
Where the transfer on divorce of a French property from one ex-partner to the other is to take place, as English lawyers specialising in French law, we can help from the outset of your divorce.
Court orders in relation to French property will usually involve a transfer into the sole name of one of the parties. Sometimes the UK Court order may include a sale of the French property or the retention of the property in joint names. Any UK and French tax related consequences need to be considered at the earliest opportunity.
Whilst the parties are free to agree between them how fees (UK and France) are to be paid e.g. jointly/equally, the person to whom property in France is transferred would normally pay the fees and purchase taxes in France.
French tax on a transfer on divorce is currently calculated at the rate of 2.5% of the total value of the property i.e. not the value of the half share transferred. If you know the current market value of the property you will be able to (approximately) calculate this and the notaire’s fees indicated below.
These would be approximately 1.5% of the total value of the property.
There is normally no French CGT payable in a transfer between spouses as part of a divorce settlement between spouses married under a separatist regime (e.g. married in the UK and no French communal marriage regime adopted). If the couple did adopt a French matrimonial regime before or during their marriage e.g. as part of their inheritance/tax planning, it would be necessary to establish which regime they adopted and currently have.
If the property were sold to a 3rd party rather than transferred to one of the divorcing spouses, each seller would then pay their share of the CGT, calculated taking account of any increase in value, the length of time of ownership and the seller’s place of residence, for example. If the property should be transferred first and later sold by the new single owner, that person alone would be liable for CGT.
If there is a mortgage registered against the property it would be necessary to redeem this or obtain the lender’s agreement to transfer the mortgage and property to the sole ownership of one of their borrowers.
Where a purchase was made "en tontine" this clause may have to be formally renounced. We would need to see a copy of the title deed (acte authentique) to verify this.
On a transfer and/or a sale of property, the seller is responsible for the provision of the dossier diagnostic, which is similar to the old UK HIPS/Home Information Pack (at his/her cost). In transfers between spouses on divorce, it may be possible to avoid this requirement as the transferee is already a co-owner of the property in question.
Both parties should appear in person before the notaire in France to sign the transfer deeds or be represented by another person to whom they have given (French) power of attorney. Power of attorney is usually the most common way to deal with these matters.
The notaire may require a Certificate (Annex 1: article 39, Council Regulation (EC) no. 2201/2003 of 27th November 2003 concerning judgments in matrimonial matters), in English and French, duly signed, stamped and sealed by the UK Court who dealt with your divorce. We can prepare the document, if required, and your divorce solicitor or you can arrange for this to be signed, stamped and sealed at the UK Court in question.
For French purposes, your court orders need to have the equivalent of “Force exécutoire” in France and be clearly legally binding and enforceable under English law, in the UK. French court deeds have a stamp/seal attached declaring that they are legally enforceable, (referred to as the “executory formula”) and some notaires require a similar reassurance in the form of a certificate of law which we can prepare, if instructed. Alternatively, (depending on the notaire) if the orders are not clear in the notaire’s opinion, it may have to go before the judge in France and an avocat would then have to be appointed. This would increase your costs further, of course. Where possible, if appropriate, we would instruct a notaire we know who is familiar with UK divorce property transfers to keep matters as simple as possible.
As divorce affects inheritance under a Will the continuing owner of the property may require advice on French succession laws and how the change in circumstances may result in the need to take additional steps to ensure that the desired heirs inherit the property (where possible). We can assist with this and, where appropriate, draft a French property Will for you if you wish to keep the property.
We are happy to advise individuals and/or other UK Lawyers on drafting appropriate clauses for a Consent order dealing with French property so that problems with its implementation can be minimised. The French notary, or notaire, would ultimately be responsible for giving effect to the order but will need as much help as possible to achieve a rapid, clear and satisfactory conclusion. Slater and Gordon has many years’ experience in this area.
Call us on freephone 0800 916 9083 or contact us online.
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