As in Germany, matrimonial law is an important part of property law in France. This applies not only to marriage, but also to other state-registered partnerships (such as the French PACS).
No marriage contract
If no marriage contract has been concluded or no martrimonial property regime has been stipulated in the marriage contract, the “matrimonial property regime of the legal community” (la Communauté légale, Art. 1400 ff. Code Civil) comes into effect upon the marriage.
Under French matrimonial property law, a distinction is made between three categories of property.
a. The joint property
b. the personal property of one spouse
c. the personal property of the other spouse.
The community property includes tangible property and assets acquired jointly or by one of the spouses since the marriage. These belong to both spouses and are managed equally by them, unless it can be proved that they are part of the personal property of one spouse (Art. 1302 Code Civil).
Although each spouse has the right to manage the joint property on his or her own, it happens in certain situations that the consent of the other spouse is required. This is the case, for example, when taking out loans or declaring guarantees.
If one spouse concludes a legal transaction requiring consent, the other spouse may subsequently consent to the legal transaction or have the legal transaction declared null and void by court action within two years.
The personal property is that property of a spouse which was brought into the marriage or which was acquired by gift or inheritance.
Both during and after the separation of the matrimonial property regime, the use of the personal property is incumbent on the respective spouse who brought it into the marriage or received the gift or inheritance.
Important difference: In France, assets acquired during the marriage belong jointly to both spouses from the beginning. In Germany, on the other hand, the assets of both spouses remain separate during the marriage under the legal matrimonial property regime of community of gains. Only after the regime of the matrimonial property has ended, the gains are compensated.
The marriage contract and thus also the matrimonial property regime come into force upon marriage. Under certain circumstances, however, the marriage contract must be approved by the court, e.g. if the spouses already have minor children (Art. 1397 Code Civil).
In France, there are three elective property regimes that can be established by a notarial marriage contract (contrat de mariage).
1. The “agreed community” (la Communauté conventionnelle, Art. 1497 Code civil)
The assets acquired at the time of the marriage and during the marriage are considered joint assets from the time of the marriage. The same applies to possible debts accumulated before and during the marriage.
2. The “separation of property” (le régime de séparation des biens, Art. 1536 Code Civil).
In this situation, the individual assets of the spouses remain separate even at the time of marriage. Each spouse is liable only for the debts incurred in his or her name (Art. 1536 Code Civil).
Goods for which neither spouse can prove sole ownership belong equally to both spouses (Art. 1538 Code Civil).
Both spouses share in the costs of the marriage in accordance with the agreements contained in their contract. If there are no agreements in this respect, each spouse shall share in the running costs in proportion to his/her income (Art. 1537 Code Civil).
3. The “matrimonial property regime of participation in acquisitions” (le régime de participation aux acquêts, Art. 1569 Code Civil).
Each spouse retains the right to manage and freely dispose of his or her personal property. However, on dissolution of the matrimonial property regime, each spouse is entitled to a half share in the assets of the other.
4. The German-French matrimonial property regime, § 1519 German BGB
This case consists of the German matrimonial property regime of community of gains, but with the addition of some French peculiarities.
During the marriage, the assets of the spouses or registered partners remain separate. Only at the end of the matrimonial property regime is compensated. For inheritance and gift tax purposes, Franco-German property regimes are treated in the same way as the German community of gains.
The French peculiarities are as follows:
- no consideration of compensation for pain and suffering in the equalisation of gains
- Changes in the value of real estate which are not based on the spouses’ contribution are also not taken into account.
This property regime is therefore particularly interesting for marriages in which there are real estate assets.
Who can choose the Franco-German elective property regime?
- German spouses living in Germany or France
- French spouses living in Germany or France
- German-French spouses living in France or in Germany
- foreign spouses who have their permanent residence in Germany or France.
Even if this elective matrimonial property regime was primarily intended to create a uniform substantive law for binational marriages in the area of matrimonial property law, the German-French one is also elective for purely German or purely French married couples.
It should be noted that this marriage contract must be notarized both in Germany (§ 1410 BGB) and in France (Art. 1394 Code Civil).
Good advice on the different matrimonial property regimes is very important. Changing the matrimonial property regime during the course of the marriage is only possible in France if it is done in the interest of the family and therefore no additional costs will be incurred by possible heirs. The new marriage contract must then be certified by a notary and, in certain cases, approved by a judge.
Do you have questions about French matrimonial property law? We would be happy to work together to find the perfect solution for you and your family!