Investing in real estate is not a trivial matter, especially when embarking on it as a couple. Separation, death: the uncertainties of life can significantly impact the management of assets acquired by a couple. Thoroughly understanding and carefully choosing your matrimonial regime is key. Mixed couples, overseas residences: each case is unique, and there is no obvious “right” choice. Without delving too deeply into the (complex) details of matrimonial property law, PATRIMOLINK provides some key insights to help you understand the contours of your regime and better anticipate its implications.
What is a matrimonial regime?
It is the legal framework that applies to the property relations between the spouses. It determines (among other things) the rules governing each spouse’s property rights over the couple’s real estate throughout their married life.
It is freely chosen by the married couple and usually takes the form of a contract. Signed before a notary, this document allows them to opt for one of the matrimonial regimes provided by law or to establish personalized rules for managing the spouses’ assets.
It establishes, among other things, the difference between “common” and “personal” property. Common property refers to assets acquired during the marriage and/or owned equally by the spouses. Personal property refers to assets that each spouse owned before the marriage, assets acquired through donation or inheritance, and those acquired in their name during the marriage.
Note: Article 1402 of the Civil Code states that any movable or immovable property is presumed to be common unless proven otherwise (written proof, notarial inventory, title, as well as testimony, presumption).
What about the French PACS?
Like marriage, the PACS (Civil Solidarity Pact) provides legal provisions regarding asset management. Unless otherwise chosen (joint ownership), the separation of property applies.
Note: Expatriates should thoroughly check with the authorities in their country of residence. Indeed, the French PACS only has legal value within the national territory. However, other countries have established civil unions offering similar rights and obligations. Therefore, your partnership may be wholly or partially recognized. The conditions required and commitments may differ, hence the importance of getting informed.
What happens in the absence of a contract?
Even without a contract, a matrimonial regime will be applied by default. It primarily depends on your place of residence. Globalization and the increase in binational marriages have led to adaptations in the legislation. Several texts are in force, applied based on the date of the marriage.
For unions concluded before September 1, 1992, the Gouthertz jurisprudence assumes the first residence of the spouses as a “presumption” of their choice of matrimonial regime. This principle gradually became too tenuous to define a lasting legal framework.
For unions concluded between September 1, 1992 (effective date) and January 29, 2019, the Hague Convention of March 14, 1978, also considers the first common residence as the criterion for assigning the matrimonial regime. Failing that, another criterion was added: the common national law of the spouses. For example, if a Franco-Korean marries a Franco-Russian, French law could apply to define the matrimonial regime.
In the event of the couple’s relocation to another country, the Convention provides for an automatic change of applicable legislation. This change can be immediate if the spouses choose to reside in their common national country. It can also be delayed: the applicable law will change after 10 years of residence in the new country. In this case, the law of the new state of residence will replace the previously applicable law.
Note: The automatic mutability only concerns couples united between September 1, 1992, and January 29, 2019. Partners who have chosen a matrimonial regime or established a marriage contract are not concerned. Furthermore, these changes do not have retroactive effects. Therefore, the spouses will have several regimes to complete before changing the legal framework.
These changes create legal uncertainty for the couple. The European regulation of June 24, 2016, ended the automatic change of matrimonial regime in case of relocation.
For unions concluded after January 29, 2019, EU Regulation 2016/1103 establishes the possibility of choosing the applicable law: either that of one of the states (even outside the European Union) of which at least one of the spouses holds nationality, or that of their habitual residence at the time of the choice.
In the absence of formal designation, the legislator considers the first habitual residence of the partners as the criterion for the choice of applicable law. If there is no principal residence, it will be “the internal law of the state with which, considering all the circumstances, the spouses are most closely connected.”
If you are an expatriate, it is highly recommended to formalize the law that will govern your union through a declaration before a notary or the Consul of your country of residence. This process will save you many unpleasant surprises in case of separation or succession.
Which matrimonial regime to choose?
There is no “right” or “wrong” matrimonial regime. Your choice will depend on your assets (common and/or respective), your professional and personal situation (such as remarriage).
There are two main categories of matrimonial regimes: community property regimes and separation property regimes. The most common regimes are the separation of property and community property with reduced acquisitions. Participation in acquisitions is less common, but it is applied in Germany, Austria, and even in Hong Kong or Singapore (equivalent).
Universal community property has become rarer and is mainly found in Scandinavian countries.
Separation of Property: Patrimonial Independence
This regime stipulates that each spouse owns and manages their personal property, except for the principal residence. The couple can also choose to invest jointly, for example, through joint ownership or an acquisitions company.
The separation regime ensures the patrimonial independence of each spouse.
In case of the death of one of the spouses, the survivor retains their personal property and inherits half of the jointly acquired property. What happens to the deceased’s personal property depends on the succession arrangement. The spouses can decide, via a will or a contract, the rights of all heirs.
Points of attention
Property purchased jointly is considered jointly owned, and the share of ownership for each must be fixed by a notarial act. This point should not be overlooked. In the event of separation, if one spouse has contributed more to the investment (such as repaying a loan), they might feel unfairly treated if they only recover half the property’s value. This is a common source of dispute. Very often, spouses married under the separation of property regime “pool” their resources during the marriage. At the time of divorce, it can be challenging to determine who paid and how much during the acquisition of an asset.
Community Property with Reduced Acquisitions: The Legal Regime in France
This regime stipulates that assets purchased during the marriage are common. However, assets acquired before the union or through donation, inheritance, or legacy (even during the marriage) are considered personal.
Points of attention
When the spouses decide to separate, each retrieves their personal property. The common part, subject to joint ownership, can pose a problem. All decisions concerning these assets, such as a sale, must be unanimous.
When one spouse passes away, the succession is organized around three parts: each spouse’s personal property and the common property. The surviving spouse retains their personal property, obtains half of the common property, and inherits part of the other half.
Let’s take a concrete example to better understand the succession under this regime:
Mr. and Mrs. A are married under the community property with reduced acquisitions regime. Mrs. A dies, her personal property amounts to €10,000, Mr. A’s personal property amounts to €14,000, and their common property is €30,000.
Mr. A retrieves his personal property, amounting to €14,000, and his share of the common property, i.e., €15,000.
Mr. A must then inherit from the remaining €15,000 of common property and Mrs. A’s €10,000 of personal property, totaling €25,000.
He receives the entire €25,000 if there are no descendants or ascendants. If they have children, Mr. A can choose between 1/4 of the total estate in full ownership, i.e., €6,250, or the total €25,000 in usufruct. The children will inherit either 3/4 in full ownership or the entire amount in bare ownership.
This succession can be modified by specific clauses. These include the full attribution clause (all assets go to the survivor), the preferential share clause (predefined assets go to the survivor), and the unequal sharing clause (the survivor receives a predefined proportion of assets).
Participation in Acquisitions: A Hybrid Regime
This regime combines separation and community of assets. During the marriage, the properties are separate. Each spouse retains exclusive ownership and management. At the end of the marriage, they become common, as under the community property with reduced acquisitions regime. However, assets acquired through donation or inheritance remain the personal property of each partner during and after the marriage.
In the event of death, the survivor inherits half of the deceased’s assets. The succession will determine the distribution of the remaining estate among the heirs.
Note: This is the most frequently used regime if one of the partners practices a “risky” profession (such as a business owner). In this context, debts are not shared.
Points of attention
This type of union is particularly difficult to dissolve and can paradoxically lead to unfair situations.
How does it work in practice?
At the time of dissolution (change of matrimonial regime or divorce), each spouse retains their personal property acquired before or during the marriage. Their respective acquisitions are added to calculate the couple’s wealth increase. The calculation is performed by a notary. The common wealth increase is divided into two equal parts and added to each spouse’s initial assets.
Let’s take an example to better understand:
Mr. and Mrs. A are married under the participation in acquisitions regime. They decide to separate.
Mr. A’s assets: Personal property: €20,000 / Property acquired during the union: €40,000 / Acquisition amount: €10,000
Mrs. A’s assets: Personal property: €30,000 / Property acquired during the union: €70,000 / Acquisition amount: €40,000
During their union, Mr. A increased his wealth by €10,000, Mrs. A increased hers by €40,000. The spouse who increased their wealth the most must transfer part of their gains to the other. This amounts to half the difference between the two acquisitions:
€40,000 – €10,000 = €30,000
€30,000/2 = €15,000
Mrs. A will thus transfer €15,000 to Mr. A.
This regime aims to protect the less advantaged spouse at the end of the marriage. However, if the poorer spouse at the time of union becomes wealthier during married life, they will lose half their capital at the time of distribution.
Universal Community Property: An Obsolete Regime
Community property was the legal regime before 1966. Today, it has become rather rare.
This regime views the couple as a unit. Regardless of who finances the purchase of an asset or who signs the sale deed, it is deemed to belong equally to both spouses. For example, if the wife buys a house with personal funds received from an inheritance, it theoretically becomes common or jointly owned. Theoretically, because it is possible to include a contrary statement in the deed of sale. Another case: when the asset is purchased with both personal and common funds. If the asset is paid with a more significant personal portion than the common portion, it will be considered personal.
If the spouses separate: unless otherwise stated in the marriage contract, the assets are divided into two equal parts.
Points of Attention
In the event of the death of one of the spouses, the survivor automatically obtains half of the estate but not the entirety. Indeed, the marriage under the universal community property regime provides for the pooling of assets during the union. When it ends with the death of a spouse, the community ends. It is essential to include a full attribution clause to the survivor in the marriage contract for everything to go to them. This clause is irrevocable and can only be annulled by changing the matrimonial regime. It protects the survivor by ensuring they have resources to live on. In the absence of a full attribution clause, the other heirs inherit half of the estate.
It is essential to know that any legally celebrated union is governed by a matrimonial regime. A person wishing to invest as a couple must therefore be informed about the implications of their regime before embarking. Matrimonial property law is complex, especially when non-residency and binationality come into play. The most prudent approach is to seek advice from a notary familiar with expatriation. Each case being unique, the advice must indeed be personalized to avoid unpleasant surprises. PATRIMOLINK supports you in your investment projects and finding your partners.
Content grouped for informational purposes and does not substitute the current regulations. Without consultation with our experts, Patrimolink cannot be held responsible for any consequences of implementing the advice and information provided in this article.
