Partnership pitfalls for international couples: The French Pacte Civil de Solidarité (PACS) and Civil Partnerships in England and Wales

In many countries, couples who do not want to marry have the possibility of entering into legally recognised relationships/partnerships. This article looks at the French Pacte Civil de Solidarité (PACS) and the English civil partnership, highlighting the potential risks for couples entering into certain registered relationships overseas where there is a connection to England and Wales.  

The French PACS

The PACS was introduced in France in 1999 as an alternative to marriage for both same-sex and opposite-sex couples. The PACS offers legal recognition of a relationship without the formalities and commitments of marriage and is very popular among young couples. PACS unions are very popular – in 2022, 209,800 PACS unions took place in France, compared with 241,700 new marriages. Interestingly, nearly one quarter of PACS couples subsequently go on to further formalise their relationship through marriage.

One of the main advantages of the PACS is its flexibility. To enter into a PACS, couples need only file a joint declaration with a local notary, which can be done without a ceremony. The process to dissolve a PACS is similarly straightforward and can be done unilaterally by one partner attending a local notary.

While partners in a PACS do have some legal rights (such as tax benefits, inheritance rights and shared social security rights) they are much more limited than for married couples. Moreover, the PACS does not require cohabitation, making it suitable for couples desiring a less formal commitment. This clearly contrasts with domestic civil partnerships and can cause difficulties for couples moving between the jurisdictions.

Domestic civil partnerships

In England and Wales, civil partnerships were introduced in 2005 primarily to provide legal recognition to same-sex couples seeking the legal benefits of marriage. Since the legalisation of same-sex marriage in 2014, civil partnerships are available to all couples. Office for National Statistics (ONS) data confirms there were 6,879 civil partnerships formed in England and Wales in 2022, compared with 246,897 marriages, making them significantly less popular.

In England and Wales, the legal framework and rights and benefits of a civil partnership are nearly identical to those of a marriage. The process to form a civil partnership involves a formal registration without the ceremonial elements of a marriage, and dissolving a civil partnership requires the same procedure as a divorce.

As can be seen from the above, there is significant disparity between the rights and obligations that flow from a PACS and a domestic civil partnership.

Will a French PACS be treated as a domestic civil partnership?

A French PACS is treated as an "overseas relationship" under the Civil Partnership Act 2004, which means that the parties have the same rights and obligations that flow from a domestic civil partnership, including the right to financial remedies on dissolution. If there is jurisdiction for a dissolution of a PACS in England and Wales, the parties will be able to make, broadly, the same claims for financial provision on dissolution of the PACS as divorce.

This possibility was considered in the recent case of V v W (2024). In this case, the applicant, an Englishman, entered into a PACS in France with his French partner, the respondent. The applicant applied in the Family Court in England and Wales for the dissolution of the parties’ PACS on the basis that he was domiciled in England and Wales and so the English court had jurisdiction. The applicant also applied for financial relief. The PACS provided that, financially, each party should take from the partnership what they had brought into it. The respondent had received a large inheritance many years ago, and if the PACS were to be to be dissolved in France, the applicant would have no entitlement to any share of the assets owned by the respondent prior to the registration of the PACS. The applicant denied that he was financially motivated to make his application for dissolution in this country. The respondent argued that the applicant had acquired a domicile of choice in France, which meant that the English court did not have jurisdiction for the dissolution. Furthermore, even if the court did have jurisdiction, it should decline to exercise it in favour of France on the basis that it is the more appropriate forum for the dissolution of the PACS.

“Domicile” is an English law concept which depends on residence and intention. A person acquires a domicile of origin at birth but can subsequently abandon it and acquire a domicile of choice. It was accepted in V v W that the applicant’s domicile of origin was England and Wales; the issue which needed to be determined was whether, by the time of his application, the applicant had abandoned his domicile of origin and acquired a domicile of choice in France. The burden of proof (which the Judge made clear was to the civil standard) was on the respondent.

Despite being born in England, and “ordering his preferred coffee from Harrods … watching English television … supporting English sporting teams, and having English speaking friends”, the court concluded that respondent had established, on the balance of probabilities, that the applicant was resident in France and had formed the intention to reside in France indefinitely or permanently and had therefore acquired a domicile of choice in France. Consequently, there was no jurisdiction for a dissolution of the PACS in England and Wales (no other grounds for jurisdiction were contended).

The court went on to say that even if the applicant had not acquired a domicile of choice in France, such that his domicile of origin persisted and he had to consider the issue of forum, he would have stayed the English proceedings on the basis that the more convenient and appropriate forum was France.

“There is a clear difference of approach between the legal regime in England and Wales governing the dissolution of a civil partnership and the legal regime in France governing the dissolution of a PACS, but that difference does not persuade me to find as unsuitable what would otherwise be the more appropriate forum. There is certainly a financial disadvantage to the applicant, and advantage to the respondent, of ceding forum to France, but that is not a sufficient reason not to do so when convenience and close connection makes France the appropriate forum.”

Although the court determined that it did not have jurisdiction to entertain the application for dissolution of the PACS, this case should serve as a reminder to those entering into certain registered relationships overseas. Such relationships may be treated by the Family Courts of England and Wales as having formed a civil partnership, such that they have all the rights and obligations that flow from a civil partnership, including the right to financial remedies on dissolution.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2024