Civil partnership agreement, marriages and divorces
When two people live together, we say that they’re a couple within specified legal rules. If they want to organize their life together, they could conclude a civil partnership agreement or a marriage. In this last case, their separation leads to their divorce.
From the moment a couple ties the knot, both spouses are submitted to a marriage regime, i.e. a set of rules that determine their rights and obligations. If they have not chosen any marriage regime in particular, their default regime will automatically become the legal regime concerning solely property purchased during the marriage, aka community regime (“régime de la communauté”).
Depending on the family situation and/or the situation of their personal assets, if they do not want to go which the default regime, future-spouses can choose their marriage regime amongst the following main types of regime by the means of a notarial marriage contract:
• Separation of assets (“séparation de biens”),
• Joint-ownership of property purchased during the marriage (“participation aux acquêts”),
• Universal community (“communité universelle”).
Accordingly, the Notaire will help the future spouses to choose the marriage regime that best suits their present and future needs. He can draft tailor-made clauses in their marriage contract, specific to each couple’s wishes.
The choice of marriage regime is crucial as it allows to determine how the couple’s assets are governed, managed and administered. However, the marriage contract may not contain any provisions pertaining to their potential divorce.
Lastly, the couple’s family, professional and property situation may change over time.
Their choice of marriage regime can be altered or amended after two years of application provided that they both agree and it is in the family’s best interest, by the means of an authentic notarial deed.
N.B. Since 17th May 2013, same-sex couples are allowed to marry in France.
In France, there are four types of divorce: divorce triggered by an offence, divorce by marriage breakdown, divorce for permanent alteration of the couple’s relationship or divorce by mutual consent (the most common). In any case, it is compulsory to hire a Notaire who will liquidate their marriage regime provided that they owned at least one real-estate asset.
When liquidating the marriage regime, the Notaire draws up each spouses’ accounts and defines what assets belong to whom, in view of then sharing out the couple’s properties.
The Notaire will focus on any potential special features of the couple’s marriage regime, check the origin of ownership of each asset (whether it was inherited, given, purchased), the origin of the funds which were used for the purchase of common assets, gathers and checks their personal identity documents, and prepares the file which will then be forwarded to the attorney.
The French law dated 15th November 1999, amended by the law dated 23rd June 2006, allows unmarried couples (including same-sex couples) to organize their life together by concluding a civil partnership agreement (“pacte civil de solidarité” aka PACS). This can be done under private agreement or before a Notaire. Furthermore, since 28th March 2011, the Notaire is authorised to register the PACS himself, in order to make the process easier for civil partners.
The Notaire must advise the future partners, helping them choose the regime that will govern their assets, protect the surviving partners in the event of the other’s death. As one civil partner does not automatically inherit from the other, the Notaire will recommend that each partners draws up a Will in France, mutually appointing each other as legatees.