With or without a prenuptial agreement, all spouses are subject to a matrimonial system, which means that a set of rules governs their property relations with third parties, such as creditors for example.
Spouses can choose among several systems.
This choice or absence of choice will define the property of the future assets.
Marriage involves rights and obligations that are often governed by public policy rules, meaning that these rules apply to spouses and cannot be changed by contract.
The different types of matrimonial systems
The community of acquisitions system
If no prenuptial agreement has been signed, the spouses are necessarily subject to this system, the characteristics of which are as follow:
- Each spouse keeps ownership of the assets he or she acquired before the marriage. Each spouse is the sole owner of the assets received by inheritance or by donation. These constitute the spouse’s private property.
- Incomes and property acquired during marriage, along with the spouses’ savings, belong to both of them. The same rule applies to creations during marriage (working tools). These are the « common assets » that make up the « community. »
- As a principle, debts incurred by either spouse involve common assets.
The future spouses would often be well advised to have a prenuptial agreement established by a notary so that they may either adopt another matrimonial system or stipulate specific provisions in the legal matrimonial system. Certain provisions of the prenuptial agreement can benefit to the surviving spouse. The advantage called “preciput” allows the survivor to receive a common asset free of charge: this is true for the family home, the unequal sharing clause whereby the spouse may receive more than half of the community or the usufruct of half of the goods belonging to the deceased’s estate.
The separate estate system
This system establishes a division between each spouse’s assets.
- All assets acquired before and during marriage remain the property of the person who bought them or created them. The same applies to property received by inheritance or donation.
- Each spouse is personally liable for the debts he or she contracted alone.
- Assets purchased as joint possession belong to both spouses proportionally to the shares acquired which, normally, should match the financing made by each spouse.
This system can be recommended for people practising an economically at-risk occupation or in the case of remarriage.”
The system of contribution to jointly acquired property
This « mixed » system functions like the separate estate system during time of marriage and will be liquidated the same way as a community system would be. At the end of marriage – by death or by divorce-, the value of the holdings acquired during marriage is divided into two equal shares: each spouse thus participates in half of the enrichment of the other. This requires delineating the evolution of the couple’s assets from the day of their wedding to the day of the marriage’s liquidation.
The joint estate system
In contrast to the separate estate system, this one puts everything into a common fund.
All property, real or personal, acquired or received by donation or inheritance (except if there is a special contrary disposition) before or during the marriage are shared by both spouses. They are jointly liable for all debts contracted by one or the other.
Furthermore, this system can provide that all of the assets or some of the assets will be attributed to the surviving spouse. This clause is called the « attribution » clause.
This system is rarely adopted during marriage.
A spouse’s rights and duties
No matter which matrimonial system applies to the spouses, no matter if an agreement has been signed or not, spouses are subject to various rules, which are often public policy rules.
As a legal obligation, each spouse has to contribute to their current expenses, to household maintenance, and to the education of their children, proportionally to their resources.
A legal action could be brought against the spouse who disregards this obligation and refuses to participate in these expenses.
Liability for personal debt depends on the matrimonial system that has been adopted by the spouses.
However, regardless of the chosen system, each spouse is liable for all the debts contracted by either of them for the maintenance of the household and the education of the children. This rule applies even if the spouses are married under the separate estate system. The only exception is the case of an excessive expense compared to the family’s lifestyle. Spouses are jointly liable for the payment of tax.
Spouses must deal together with any transactions concerning the family home and its furniture. Therefore, even if they belong to only one of the spouses, the owner is not allowed to sell or pledge these assets without the other spouse’s consent, no matter which matrimonial system applies to the couple.
In case of a lease, the spouses are co-tenants, even if the lease is signed by one spouse only or if the lease is prior to marriage.
Various questions about marriage
Can a minor get married?
Yes, but with the consent of his parents.
Can I marry my cousin?
Yes, but there are impediments provided by the Civil Code: they only concern ascendants and descendants and relatives or allies of the direct line, brothers and sisters with each other, uncles and aunts with nieces and nephews.
What happens if we don’t sign a prenuptial agreement?
The legal system of community of acquisitions automatically applies to the spouses.
Why write a prenuptial agreement?
A prenuptial agreement enables the spouses to choose a matrimonial system adapted to their current situation and to their life plan, which will remain the same, even if the spouses move abroad.
Who should I contact to choose a matrimonial system and to draft a prenuptial agreement?
You need to see a notary. He will recommend the best solutions in keeping with your life plan. As a public officer, he is the only person empowered to draw up a prenuptial agreement, which corresponds to the spouses’ wishes in accordance with the legal provisions.
When is it time to sign a prenuptial agreement?
The agreement must necessarily be signed before the celebration at the town hall, because the notary issues a certificate, which has to be given to the registry office prior to the marriage.
How much does it cost to get a prenuptial agreement drafted?
The cost depends on the complexity of the spouses’ situation and on the importance of their estate. The price is approximately € 500, unless there is a special case to be dealt with.
Can we change our matrimonial system once we are married?
Yes, if this change is in the interest of the family and if you have been married at least two years. You have to go see a notary who will draft a new contract. This change will be final only if no adult child and if no creditor raises an objection to this change within 3 months. However, in the presence of children under 18 or if, after notification, an adult child or a creditor opposes the proposed change, the court needs to approve this change. Except for certain cases, the new contract contains liquidation of the previous matrimonial system. The cost of the change of a matrimonial system is greater than a prenuptial agreement.
I am getting married abroad, I am going to marry a foreigner, I am moving abroad: does this change anything for me?
Couples who get married in France or abroad must comply with the conditions required by their national law.
The foreign spouse who wants to get married in France must provide a certificate proving that he/she has the right to marry, for example, because he/she is old enough.
If the marriage is celebrated abroad, the spouses should ask the French Consulate or French Embassy in order to get all the necessary paperwork done before and after the wedding. The omission of certain formalities may lead to the annulment of the marriage, or to its lack of perfection in France.
Regarding the matrimonial system :
If you have not signed a prenuptial agreement and if you or your spouse is a foreigner, the matrimonial system will be determined by application of the Hague Convention, which came into force in France as of the 1st of September 1992.
Even if both spouses are French, if they live abroad for a long period during their marriage, their matrimonial system can automatically change.
Therefore, to avoid any questions and debates over your marital system and the risk of an automatic change of the system due to a change of residence, it is advisable to regularize a prenuptial agreement before marriage.