An English woman resident in the UK, plans to marry a French man living in France. The religious aspect of their ceremony is to take place in the UK whilst the civil part, is to be held in the French town where the man currently lives and where they plan to live, as a couple, after their marriage. This would mean that their marriage was subject to French law. Marriage under English law does not require a separate civil ceremony but under French law, as in this case, it does.

How then, does French law treat this marriage? This question has to be considered together with the options open to both spouses with regard the regulation of their matrimonial property. This is because in France, unlike in the UK, there are several options open to a married couple and to protect the interests of both parties, these options need to be looked at carefully. Whichever option the couple choose, it will be known as their “régime matrimonial”. It will be their regime, because it relates specifically to them. Specific details of any regime will vary from couple to couple and it is these details which will need to be agreed and signed off with a special deed known as a “contrat de marriage” or marriage contract. This must be signed before the marriage and in front of a French notaire. If a marriage contract is not signed in this way, it is deemed that a marriage contract does not exist and the default position of “communauté de biens réduites aux acquêts” will automatically be assumed. Communauté de biens réduites aux acquêts

Under this regime, all the assets owned by each partner before the marriage will remain his or her own property and any assets bought after the marriage will be treated as joint assets. Any income received by one spouse, after the marriage, is treated as joint income and any debts incurred are treated as joint debts. If a property is purchased after the marriage, it is also treated as a joint asset unless the spouse purchasing it can prove that he or she bought it using funds belonging to them personally, prior to the marriage, or unless the purchase is funded by the sale of a personal asset. Any immoveable property given to one of the spouses, or received through inheritance, after the marriage, remains the personal property of that spouse. To deal with any joint assets, property in particular, both spouses must be in agreement.

The principal issue with this particular regime is that it is sometimes difficult to separate a joint asset from a personal one. This scenario demonstrates the point; One party may during the course of the marriage use significant personal funds to improve the marital home and since under this regime, the marital home is deemed a joint asset, that party may be entitled to claim for reimbursement or recompense the calculation of which can prove very difficult indeed. Another reason that this regime may not be suitable is that joint assets (and debts) are divided equally. This means that even if only one of the spouses works, the other one, who does not contribute an income, will still own half of all the assets bought after the marriage.

Séparation de biens “Separation de biens” set out in articles 1536 to 1568 of the French civil code, is a similar arrangement to that which is commonly adopted in the UK. In this regime each spouse is considered to have separate shares in everything that is jointly owned and anything that is owned in the sole name of one of the parties belongs specifically to that party. This form of matrimonial regime is often recommended to clients running a business that has a risk of debt. The idea being, that whatever belongs to one spouse specifically, only belongs to him/her and vice-versa regardless of when those assets were bought or received.

Under this regime it is possible for the couple to buy assets equally in their joint names or separately if they wish. The séparation de biens differs from the communauté de biens réduites aux acquêts in this important respect. Under the séparation de biens régime, when an immoveable property belongs solely to one of the spouses, he or she can sell it without their partner’s authorisation unless it is the matrimonial home. If it is the family home, the second spouse must give their authorisation for the sale but will not be entitled to any of the proceeds from that sale. This rule also applies to the communauté de biens réduites aux acquêts when the family home is a personal asset of one of the spouses. When a property belongs to both spouses they must be in agreement if they want to sell it.

Other matrimonial regimes

Those referred to above are the most common forms of matrimonial regime in France but there are others; Participation aux acquêts This less common regime maintains the principal that at the end of a marriage, be it by death or divorce, the spouse whose assets have increased the most during the marriage must pay a lump sum in compensation to the partner whose assets have increased the least. Communauté universelle. In this regime, all assets are treated as joint assets and all debts, as joint debts. This regime usually contains a clause namely, d’attribution intégrale de la communauté which dictates that in the event of a spouses death, all the joint assets pass directly to the surviving spouse and not to the children. This can be a very effective way of protecting the surviving spouse but in practice it is usually not really advisable for newlyweds especially when debts may arise in the future. Régime primaire Any marriage under French Law, regardless the matrimonial regime entered into, is subject to a number of basic rules. These rules are known as régime primaire and are set out in articles 212 to 226 of the French civil code. One of the main rules is that each of the spouses must contribute, in so far as they are able, to the needs of the family, whether that be financially or practically. In practice what this means is that the partner with the highest income must contribute the most. 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.

In summary

Deciding upon which of the various options is the most suitable for you and your future spouse is not easy and it will largely depend upon your personal situation and views. Each regime has its pros and cons and you are strongly advised to seek professional advice when considering which type of contract to go for. Whatever your decision, it is advisable to ask a French notaire to draft a contrat de marriage confirming it and to seek specialised legal advice.