Sarah Jane Tasteyre, a Registered Foreign Lawyer practising French law based in Hong Kong and United Kingdom, and Kimberly Ann Dasse, a family law practitioner based in Hong Kong, compare financial disclosures in Hong Kong and France.
Financial Disclosure in French Proceedings
There is no equivalent to the Form E in France.
Some would assume that the “Etat Liquidatif” is the equivalent of the form E, but the “Etat Liquidatif” is a document drafted by a French notary listing the matrimonial assets of the spouses and dividing them according to the rules of the matrimonial regime chosen by them.
In France, the main principle in matrimonial law is that all marriages are subject to a matrimonial regime, either chosen by the spouses in a marital contract signed before a notary or applied de facto in the absence of a contract.
There are two main types of matrimonial regime: separation of assets and community of assets. Within these categories one may choose to included specific dispositions, leading to various types of matrimonial regimes.
Disclosure and Petitioning the French Courts
When petitioning for divorce in France, the plaintiff applies for an authorisation to divorce as well as for interim measures, such as maintenance, to be enforced until the divorce becomes final. At this stage, there is no requirement for full asset and liability disclosure as with the Form E in Hong Kong. Rather, the spouses either agree on the distribution of matrimonial assets or instruct a notary to draft an “Etat Liquidatif”, based on disclosure by the parties.
The notary will determine each spouse’s rights in the matrimonial assets by applying the rules of the matrimonial regime and how the assets should be distributed. He will be dealing with transfers of properties or the situations where spouses choose to remain tenants in common. He will basically make suggestions as to how the spouse could divide their assets.
Once the judge has authorised the divorce, the parties will have to rely on the document drafted by the Notary to carry out the division of assets.
The matrimonial regime does not, however deal, with all the financial consequences of the divorce.
Once the matrimonial assets have been divided, the parties need to deal with maintenance. If one spouse applies for maintenance for the children, there will be a need for disclosure of income and expenses. In France, the law does not provide for monthly maintenance for a spouse, but rather a compensation for sacrifices made if one spouse is less well-off and will usually be paid as a lump sum.
For some French nationals facing proceedings before Hong Kong courts, the obligation to file a Form E is difficult to understand and to accept. It is often regarded as an unjust invasion of privacy. However, they have no other choice than to comply. If they fail to do so, the judge will have to make a decision based on the other party’s information and application, and it will be more difficult if not impossible to defend themselves.
Some confuse Form E and the notary’s “Etat Liquidatif” because both processes require similar financial disclosure. However, the Form E will be used by the Hong Kong judge who will make a discretionary decision, whereas the French Notary will apply the rule of law to the information given to him, and the French judge will have to refer to that the division of assets in his decision.
Published on LegalClarus on 1 May 2020
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