Married couples in France all have a certain matrimonial regime, regardless of whether they were married here or abroad.
Whether you know what it is or not, this regime has a bearing on how property – including homes, money in bank accounts, and businesses – is owned within your marriage and what happens in the case of divorce or death, or business debts.
It is, therefore, important, if you live in France, to know what regime applies and to consider its effects when buying a home.
For marriages that take place in France, the default regime is communauté réduite aux acquêts, in which property acquired after the marriage, excluding inherited property, is jointly owned, whereas each spouse owns individually any property they owned prior to the marriage.
What if you were married abroad?
Marriages that took place abroad are usually treated by France by the conventions in place in the country in question, as long as the couple lived there immediately afterwards.
This means, for example, that a couple who marries in the UK, and lives there afterwards, will fall under the séparation de biens regime (see below). In this case each partner individually owns property they paid for or were given, unless a ‘pre-nup’ agreement was signed stating otherwise, which is not typical.
The same applies to most US marriages, but Californian marriages follow the same rules as France.
However couples are not obliged to limit themselves to the default rules.
If the marriage is to be celebrated in France, it is advisable to consult a notaire beforehand so they can alert you to the options ranging from common ownership of everything to each person retaining all of the property they brought into the marriage and that was bought or given to them during the marriage.
It is also possible to visit a notaire to change your marriage regime. A change is possible as long as the couple has been married for two years and/or has not previously changed the regime in the last two years.
It is also important to bear in mind that it is possible for your regime to have changed automatically (see below).
There are several different regimes and it is also possible to 'tailor-make' the actual marriage contract with tweaking for specific items of property.
What are the French marriage regimes?
There are two main regimes to bear in mind:
1: Séparation de biens
Here all property owned at the time of the marriage and bought during it remains owned by the person who paid for it or was given or bequeathed it and only the individual’s possessions are at risk if he or she is in debt.
Due to the latter factor this arrangement may suit, for example, couples where one spouse is self-employed and does not wish the other spouse to be at risk for business debts.
Where property is not clearly owned by one or the other partner, it is deemed to be owned half and half if it has been acquired by means of income accruing during the marriage. This may apply to the matrimonial home if the deeds state it is jointly owned but do not specify precise portions of the purchase price to be paid by one or other of the spouses.
In the case of death the surviving spouse has only the usual legal rights, eg. as a minimum to go on living in the family home if in the name of the deceased spouse.
Whether he or she also has full or partial ownership depends on whether he or she already owned a share, the contents of the deceased’s will and whether or not the deceased had children (in which case they would be entitled to part of the estate). In a divorce each party gets the property which belonged to him or her.
It is however possible to acquire small elements in shared ownership, such as a car or items of furniture.
2: Communauté universelle
Here all assets acquired after marriage are owned in common apart from certain personal items like clothing or certain kinds of income such as compensation payments received as damages for personal loss. Assets belonging to either spouse before marriage may be brought into common ownership when this contract is entered into, or excluded according to the couple's choice. All matrimonial property is potentially at risk for joint or individual debt arising after marriage.
This regime can be helpful to ensure all of the marital property, eg. a home, goes in full to the surviving spouse after the first death, despite French rules of forced inheritance which allocate set minimum portions of a person's estate to their children (see more below). Opting in a will for the law of your nationality, based on an EU inheritance regulation, used to be an alternative way of bypassing these rules, but this has been put in doubt by a French law passed in 2021.
In the case of divorce, property would be shared half and half.
What other options are there?
As mentioned, the default arrangement in a French marriage is communauté réduite aux acquêts. This is equivalent to communauté universelle for purchases made during the marriage and for most forms of income but each spouse remains sole owner of property they brought into the marriage and of gifts and inheritances received during it. In the case of divorce or death the property held in common is split half and half.
Communauté réduite aux meubles et acquêts is similar. All money and other property is placed in common ownership except real estate owned before the marriage.
Modified versions of these last two are possible, with clauses stating, for example, that a surviving spouse may inherit all the jointly-held property or that the spouses will have unequal shares in the marital property, rather than half and half ownership.
Participation aux acquêts is similar to séparation des biens, but if the marriage ends then the spouse who has acquired less property during the marriage is
eligible for compensation amounting to half the difference between his or her possessions accrued during the marriage and those of the other spouse.
How can a communauté regime help with planning inheritance matters?
It may be one way of ensuring that ownership of the family home (or of everything, in the case of communauté universelle) goes to a surviving spouse and there is not a situation of joint ownership with children, who otherwise have an automatic right to inherit a portion of the deceased’s estate under French law (one half for a single child, a third each for two or three-quarters shared by three or more).
This benefit does not, however, come into play automatically; the default rule is that only half of the property goes to the survivor.
For property to go to the survivor in full you need to include a specific clause in the contract specifying this, which may relate to certain specified property or all of it. Children of the marriage in this case only inherit after the death of the second spouse (and will only benefit once from the children’s €100,000 tax allowance).
Such an arrangement could however be challenged through the courts on death if there are children from the deceased’s previous relationships who would otherwise lose out later (ie. because on the death of the second spouse those children may receive nothing from his or her estate as there is no blood relationship). If this is a concern you may wish to take specific legal advice.
How do you change your existing matrimonial regime?
You must visit a notaire, who will discuss the best regime and contract clauses and draw up and register the appropriate contract.
The notaire is required to obtain the agreement of adult children to the proposed change and creditors are informed by publication in a newspaper.
If one or other of the spouses has children who are minors, the new contract must also be approved by a family court.
If the parties are not yet married, they should consult a notaire beforehand.
The cost involves various administrative charges plus the notaire’s own fees and varies greatly depending on the couple’s circumstances and the values of property involved. If it is necessary to go to the family judge, you will also need an avocat, whose fees for this are typically around €1,000 or more.
What would happen if we change regime and move back to our country of origin?
The effect will be fairly limited. In terms of inheritance, French law – including the marriage contract - would still apply to any property situated in France, but would not apply to property abroad.
As for divorce, if the divorce is started abroad, for example in the UK or US, then that country's law as to fair division of the assets will apply and its courts will not see themselves as bound by the matrimonial contract.
Why might your regime have changed 'automatically'?
There is one notable exception to the usual rules relating to marriages that took place abroad and where the couple live in the same country immediately afterwards.
This relates to marriages that took place between September 1, 1992, and January 29, 2019. This is due to changes in international treaties and rules in force at the time.
In this case, if a couple moves to France, after 10 years their regime is deemed to default to the standard French regime with regard to assets acquired from that point, unless a specific regime was declared at the time of marriage.
This also happens, in the case of these marriages, immediately on moving if both partners are French, or from the time of the nationality change if they both become French.
If in doubt about what your regime is, and its consequences, speak to a notaire.
You can sign an agreement to confirm which regime is applicable and thus avoid the issue of mutabilité automatique (automatic change).
Note that couples with a Pacs or civil partnership are not subject to these issues.