Importance of marriage regimes

Before buying property as a couple, consideration should be given to what will happen if one party dies.

Advice can be obtained from a notaire, an avocat or a foreign French law specialist. 

If the parties want the survivor to inherit the whole property, there are several solutions under French rules familiar to notaires, one of which involves a change of marriage regime. However, in some cases, if applicable, it may be preferable to make use of the EU inheritance regulation to opt for the law of your nationality.

Changing marriage regimes

Married couples in France, whether married in France or abroad, are subject to specific rules regarding how property is owned within the marriage and in the case of divorce or death. This is known as a matrimonial (or marriage) regime.

It is important to know what your regime is as if you are married and live in France your assets and liabilities are subject to these rules.

If a marriage is to take place in France, it is advisable to consult a notaire so they can help you consider options: from common ownership of everything, to each person retaining property they brought into the marriage and that which was bought by them or given to them during it.

You can also arrange with a notaire to sign a contract changing your regime.

In the case of people married outside France, the default 'regime' depends on the conventions of the country concerned.

For example, English law does not recognise the concept of matrimonial regimes (though 'prenup' contracts, which are not common, are generally respected by courts where freely entered into). A couple who married in the UK and lived there immediately afterwards will usually, if they move to France, be treated as falling under the second example above, séparation de biens, unless they opt to change regime.

This also applies, for example, to most American marriages, though not to Californian ones where the default is the same as for French marriages (see below).

For marriages before September 1, 1992 your regime is considered by France to be either that chosen when getting married or is linked to the usual rules in the place where you lived just after marrying.

For marriages between September 1, 1992 and January 29, 2019 the regime is usually the one of the place you first lived together but if a couple move to France it can default to the standard French regime in respect of future assets unless they declared a specific regime at the time of marriage. This happens after ten years or immediately on moving if both partners are French or from the time of the nationality change if they both become French (see more below about these 'automatic' changes).

For marriages after January 29, 2019, the default position is the law of the couple’s first common habitual residence but couples can choose the law of the place they are living in or of one of their nationalities.

The default position of a French marriage (or if the first matrimonial home was in France after a marriage abroad) is communauté réduite aux acquêts: property acquired after the marriage (excluding inherited property) is jointly owned.

These matrimonial regimes affect how property is owned within a marriage – homes, bank accounts, businesses etc – and what happens in the case of divorce or death as well as liability for business debts.

There are several regimes and it is possible to 'tailor-make' a marriage contract, tweaking for certain items of property.

Séparation de biens

Under séparation de biens 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. Only the individual’s possessions are at risk if he or she is in debt.

Where property is not clearly owned by one 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.

Communauté universelle

Under communauté universelle 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. home/s, goes in full to the surviving spouse after the first death, notwithstanding French rules of forced inheritance. In the case of divorce, property would be shared half and half.

UK-resident British couples sometimes used to take out a French communauté regime just relating to their French holiday home, however this is no longer applicable.

The default arrangement in a French marriage is equivalent to communauté universelle for purchases made during the marriage and for most forms of income, however 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 (for succession purposes) property held in common is split half and half.

A communauté regime can be one way of ensuring 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.

This benefit does not however come into play automatically; the default rule is that only half of the property is the survivor's.

For property to go to the survivor in full you need to include a clause d'attribution intégrale in the contract specifying this, which may relate to 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 child’s €100,000 tax allowance).

There is however a risk that such an arrangement might be subject to a legal challenge 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 they may receive nothing from his or her estate as there is no blood relationship).

If this is a concern you could take legal advice on this point (for example it is possible for the child to sign a notarial deed renouncing the right to take such action).

To change your 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 inform adult children of the proposed change by letter and creditors are informed by publication in a newspaper. They have three months to object and, if they do or if one or other of the spouses has children who are minors, the new contract must be approved by the family division of a tribunal judiciare.

Changing to a communauté universelle regime

To change to a communauté universelle regime costs around €1,500 if the couple only own mostly liquid assets and jointly-owned real estate. If some real estate is owned individually, it will cost an additional 1.7% of its value to include it.

If it is necessary to go to the family judge, you will also need an avocat, whose fees for this are generally around €1,000+.

If a couple were to change regime and move abroad to the UK or US, the effect would be limited. In terms of inheritance, the marriage contract would still apply to their property in France, but it would not apply to foreign property.

As for divorce, if, for example, it is started in England, then English law as to fair division of the assets will apply and the English courts will not see themselves as bound by the matrimonial contract.

It is not possible for UK civil partners in France to adopt communauté universelle.

People becoming pacsed can agree to a clause in their pacs contract attributing all property to the survivor, but note that it cannot prevail against children's inheritance rights.

‘Automatic changes’ to some marriage regimes

Notaires also warn that couples are often unaware that in some cases their regime can change automatically. 

For marriages contracted in France the default regime is communauté réduite aux acquêts: property acquired after the marriage (excluding inherited property) is jointly owned by the couple, whereas each spouse owns individually any property that they had owned prior to the marriage. 

As explained above, marriages that took place abroad are generally treated by France according to the conventions in place in the country in question. 

UK marriages, for example, are seen as falling under France’s séparation de biens regime unless (unusually) the couple had a pre-nuptial agreement that states otherwise. The same applies to most US marriages, although Californian marriages follow the same rules as France. 

With séparation de biens there is an assumption that 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. 

One exception to this is marriages that took place between September 1, 1992 and January 29, 2019. 

The specificity of the time period relates to changes in international treaties and rules in force at the time. 

In this case, if a couple move to France, then after 10 years their regime is deemed to default to the standard French regime with regard to assets acquired from that point, unless they had declared a specific regime at the time of marriage. 

This change also happens immediately on moving if both partners are French or from the time of the nationality change if they both become French. 

Many foreign couples in France are not aware of their current regime or the complications it could cause in the case of inheritance or divorce or purchase of a new house. 

This can especially be the case where some of their possessions are subject to one regime and others to a different one, due to an automatic change having occurred.

The best remedy to this is to anticipate the change, and speak to a notaire. 

You can sign an agreement in front of him or her confirming the regime that is applicable to your marriage, which will then avoid the problem of mutabilité automatique (automatic change).