What is the PACS and how is it concluded?
The Pacte civile de Solidarité (civil solidarity pact) is a contract between two persons of legal age of the same or different sex that is intended to organize their life together (Art. 515-1 Code Civil). To enter a PACS, the partners must be of legal age, neither related to each other nor already be in a marriage or another PACS.
Since 1.11.2017, the PACS is concluded before the registrar of the municipality in which the couple has their habitual residence or before a notary.
The contract (convention de Pacs) is concluded in writing and entered in a register. From the date of publication, the legal effects of the partnership also apply to third parties. The PACS is noted in the margin of French birth certificates. The contract can be amended at any time.
What documents are required?
Here we present the most common case at our law office: a German citizen wants to conclude a PACS with a French citizen. Both live in France. For other constellations, the simulator from the Service Public compiles the list of necessary documents.
For the German citizen:
- A valid identity document (original and copy)
- A certificate of non-existence of a PACS (certificat de non-Pacs) This can also be applied for online
- A certificate of absence of registration in the civil register (attestation d’absence d’inscription au répertoire civil) (The French authorities want to ensure that foreign nationals are not restricted in their legal capacity in their home country. If they have been living in France for more than a year, the Ministère de l’Europe et des Affaires Étrangères is responsible. The certificate can be requested by mail or e-mail.
- A copy of the birth certificate. If the birth certificate is only available in German, a certified translation is required. International birth certificates are recognized.
- The Certificat de Coutume has not actually been required of German citizens since 1999. In rural areas, the registry office may not be familiar with this regulation. In such a case, you can present the following document: Certificat de coutume (Allemagne)
For the French citizen: (only)
- A valid identity document (original and copy)
- The PACS joint declaration including the declaration on oath of non-relatedness and joint residence: cerfa n°15725
- The PACS contract (personalized version or completed form cerfa n°15726)
Please note: The certificate of non-existence of a PACS and the certificate of non-existence of an entry in the civil register are only valid for three months. Future partners should therefore make an appointment with the registry office or notary as soon as possible!
What are the consequences? What are the differences to marriage?
Couples united by a PACS can file a joint tax return and have the option of agreeing the same matrimonial property regimes as married couples.
The partners do not have the option of taking the surname of the other partner. This is reserved for the spouses. However, it is possible to add the PACS partner’s surname to their name. However, this is only declaratory and has no legal significance. It will also not appear in the civil register.
Partners are jointly and severally liable to third parties for ordinary debts incurred by one partner for joint living expenses. This does not apply to excessive expenses. The exact rights and obligations are set out in the contract. However, clauses that exclude the mutual obligation to provide support are null and void. This is precisely the point of a Pacs.
Unless the partners agree otherwise, they do not acquire joint ownership. Each partner remains the owner of their movable and immovable property and can manage and dispose of it freely (Art. 515-5 of the Civil Code).
The parties may contractually stipulate that goods acquired jointly or alone from the date of publication of the relevant contract belong to them jointly. However, some goods are excluded from this under Art. 515-5-2 of the Civil Code:
- Monetary benefits received by a partner after the conclusion of the PACS and which he has not used to acquire an object;
- products and accessories;
- items or parts thereof acquired with benefits that belonged to a partner before the agreement was concluded or amended;
- items or parts thereof acquired with benefits received as a donation or inheritance;
- parts of items that have accrued to the partner as a result of the dissolution of an item owned by one of the partners from a community of heirs or a donation.
The PACS is a general partnership. Some of the provisions of company law on the de facto company (société crée de fait) apply. If one of the partners is a company director, the rules of Art. L121-4 et seq. Code de Commerce must be considered.
Fathers must also acknowledge paternity within the first year after the birth of children who are born in the presence of a PACS. If one parent fails to acknowledge paternity within the one-year period, the other parent remains the sole custodian. After the child’s first birthday, joint parental custody requires a joint declaration of custody before the Tribunal de Grande Instance or a decision by the family court (Art. 372 para. 3 of the Civil Code).
The recognition relevant to custody must be made to the registry office. A declaration of recognition before the notary only influences the child’s status as an heir.
In the case of binational marriages (e.g. Germany and France), the German partner can acquire the French citizenship of the French spouse under certain circumstances. This is not possible in the case of PACS. However, after five years, the partner can apply for naturalization independently of the PACS.
Partners can be covered by each other’s social security (affiliation à la sécurité sociale) and, in the event of death, can claim their partner’s lump-sum death benefit (capital décès) as a priority.
As far as inheritance law is concerned, marriage is much more advantageous. The PACS does not confer any inheritance rights on the surviving partner. It is therefore necessary to draw up a will. This is because the surviving partner is considered a third party to the deceased partner in terms of inheritance rights.
Overall, the spouse can inherit more than the PACS partner. Marriage makes it possible to grant the surviving spouse a higher share of the inheritance than the available quota (quotité disponible) in the event of death. Spouses have the option of allocating the so-called “quotité disponible spéciale entre époux”. The spouses can either choose the usufruct of the entire estate (even if there are compulsory heirs) or the remaining three quarters as usufruct in addition to full ownership of one quarter of the estate (Art. 757 of the Civil Code).
The possibility of donation between spouses (donation entre époux) pursuant to Art. 1091 of the Civil Code is also reserved for spouses only.
When and how does the PACS end?
The PACS ends automatically upon the death or marriage of the partners, to each other or to another person (Art. 515-7 para. 1 of the Civil Code).
The PACS is terminated either by joint or unilateral declaration to the civil registrar or the notary who registered the PACS. If one partner alone decides to dissolve the pact, he or she must have this decision notified to the other partner and send a copy of this declaration to the competent civil registrar or notary. The PACS is deemed to be dissolved once the declaration has been entered in the register, but towards third parties only once it has been published.
Abroad, the diplomatic or consular officials are responsible for registration. The partners shall decide on the dissolution of rights and obligations between themselves.
Mutual claims are settled in accordance with Art. 515-7 para. 11 Code Civil in accordance with the provisions of the communauté légale under Art. 1469 Code Civil. In accordance with Art. 515-6 Code Civil, the provisions of inheritance law apply in the event of the dissolution of the PACS.
Recognition of the PACS in Germany
A French PACS is only recognized for same-sex couples. However, the notarization of the PACS in the German register only has a declaratory effect, so that the PACS established abroad cannot be converted into a marriage in Germany by submitting a declaration in accordance with § 20a LPartG and entered in the marriage register.
In the coalition agreement, the political parties have determined that family law should be modernized and that the institute of the “community of responsibility“ (Verantwortungsgemeinschaft) should be introduced. This is intended to enable two or more persons of legal age to assume legal responsibility for each other beyond romantic relationships. Friends, roommates, etc. should be able to take legal responsibility for each other without any unnecessary bureaucracy.
If this law is successfully passed, we will report on it in detail.
Recognition of the PACS in Switzerland
A French PACS is not recognized in Switzerland and is considered a contract under foreign law and jurisdiction. Swiss courts can neither confirm nor dissolve it.
In the cantons of Geneva and Neuchâtel there is already a type of PACS, namely the “Partenariat cantonal genevois” for Geneva and the “partenariat enregistré cantonal” for Neuchâtel. This enables couples to have their relationship and status as a couple recognized. However, it only has a symbolic or limited effect under cantonal public law and does not involve a change in the civil status of the partners. With these partenariats, partners can appear to third parties as a couple. This provides clarity in many situations (hospital visits, visits to the authorities, conclusion of contracts, etc.), but nothing more.
A parliamentary initiative for the introduction of a PACS for all of Switzerland exists and is viewed positively by the majority in Switzerland.
Are you considering whether the PACS or marriage is the right path for your relationship or your family? We would be happy to advise you on this topic, also in an uncomplicated way by telephone or video conference.