Author: Vincent Morand

Date: July 2010

Published: Living France

In the last issue we looked at the matrimonial regime – communauté universelle avec clause d’attribution intégrale au conjoint survivant – as a way to protect the surviving spouse. In this issue we will consider the various French régimes matrimoniaux through a recent case we have come across.

Our client, an English woman resident in the UK, was planning to marry a French man living in France. The religious part of the ceremony was planned to take place in the UK while the civil part would take place in France at the town hall in the village where they were planning to live together immediately after the wedding. The fact that they were planning to do this means that their marriage was going to be subject to French law. While marriage in church (or most other places of worship) under English law does not require a separate civil ceremony, this is necessary in France. How would French law treat such a marriage? This is a question that we had to consider with our client: to discuss what options would be available for her and her future husband in relation to how they would regulate their matrimonial property.

A régime matrimonial is the set of rules that govern how a married couple’s assets will be held. In France, unlike in the UK, there are several régimes matrimoniaux and the choice is made by signing a special deed known as contrat de mariage with a French notaire. If this contract is not signed before the marriage, the communauté de biens réduites aux acquêts is the default position.

Marriage without a contrat de marriage

There is an international convention, applicable in France, which out the rules that apply to international marriages. According to this convention, if the couple have not made a specific choice of regime prior to their marriage, then the standard regime of the country where they have their first habitual residence after the marriage is applied. In the case of our client, they were going to live in France, so French law would apply and thus the spouses would be married under the communauté de biens réduites aux acquêts.

Marriage with a contrat de marriage

Each régime has pros and cons and the type of contract you chosen will depend on the personal situation of the future spouses:

· Communauté de biens réduites aux acquêts

In this regime, assets owned by each spouse before the marriage remain his or her own property (bien propre). Assets bought after the marriage are treated as joint assets. Income received by one spouse is treated as joint income and consequently debts are also generally treated as joint debts. If a property is purchased after the marriage, it is treated as a joint asset (bien commun) unless the spouse purchasing it can prove that he is using funds owned by solely by him or her before the marriage or the purchase is funded by the sale of an asset treated as personal. Immoveable properties given to or received by inheritance after the marriage by one of the spouses remain personal to this spouse. To deal with joint assets (biens communs), in particular immoveable property, the spouses must be in agreement.

This régime matrimonial is not always a suitable one. One of the main features of the communauté de biens réduites aux acquêts is that in practice it may be difficult to separate personal assets from joint assets. It is not uncommon that during the marriage one spouse might use personal funds to for example, carry out work on a joint asset, meaning that in case of a divorce this spouse may be entitled to claim for a reimbursement, known as récompense. Calculation of these récompenses may prove very complex. On the other hand, even if only one of the spouses works, the other who does not contribute an income will still own half of the assets bought after the marriage. In case of a divorce joint assets and debts are equally divided between spouses.

· Séparation de biens

The régime matrimonial of separation de biens is similar to the situation we would recognise in the UK in that each spouse is treated as having separate shares in everything that they may own jointly and that any asset owned in the name of one of them is personal to that one person. They are set out by articles 1536 to 1568 of the French Code civil. This régime matrimonial is often recommended by French notaires for clients running a business that has a risk of debt. The main idea is that what belongs to one spouse only belongs to him and vice-versa, whenever the assets were bought or received by him. It is however possible to the couple to buy assets equally in their joint names. Every time they want to purchase another asset, the spouses must decide whether or not they want this asset to be in their joint names. With the communauté de biens réduites aux acquêts the rule is different as the principle is that all assets bought after the marriage will be joint unless the contrary can be proved.

With the séparation de biens régime, when an immoveable property belongs to one spouse only, he can sell it alone without the other spouse's authorisation unless this is the matrimonial home (résidence de la famille). In this case the second spouse has to give his authorisation. It is however only an authorisation and the other spouse is not treated as the owner of the property and as such does not receive anything from the sale proceeds. This rule also applies with the communauté de biens réduites aux acquêts above when the résidence de la famille is a personal asset (bien propre) of one the spouses. When a property belongs to both spouses they must be in agreement if they want to sell it.

· Other régimes matrimoniaux

The communauté de biens réduites aux acquêts and the séparation de biens are the two main French régimes matrimoniaux. There are also the participation aux acquêts, which is in practice less common. The main rule of the participation aux acquêts is that at this end of the marriage, by death or divorce, the spouse whose assets have increased the most during the marriage has to pay a lump sum compensation to the one whose assets have increased the least. Finally there is the communauté universelle. This is a régime matrimonial treating all assets as joint assets; debts are also treated as joint debts. Usually there is clause d’attribution intégrale de la communauté meaning that on the first death all the joint assets pass on to the surviving spouse and therefore the children do not inherit from the first to die. This can be an effective way to protect the surviving spouse but in practice it is usually not really advisable for newlyweds especially when debts may arise in the future.

Régime primaire

There are rules that apply to any marriages subject to French Law regardless the régime matrimonial. These rules are known as régime primaire and are set out by articles 212 to 226 of the French Code civil. One of the main rules is that the spouses must contribute to the needs of the family, whether in a financial or a practical manner, as far as each of them is capable of so doing. In practice the partner earning the most must therefore contribute the most. Finally there are also cases were spouses, even those married under the séparation de biens regime, are both responsible for the payment of particular debts. That may be the case for fiscal debts or for debts related to the family's direct needs.

Deciding which of the various options is the most suitable is not easy and the choice mainly depends on personal views. Whatever the decision is, it is advisable to ask a French notaire to draft a deed – contrat de marriage confirming it. Specialised advice should also be sought to consider cross border issues.

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