The great innovation of the law of July 13, 1965 is to have authorized the change of matrimonial regime during marriage.

We can go from a legal community regime to a regime of separation of property, or the reverse, opt for a universal community with attribution to the last living, but also adapt the existing regime and only modify the destination of a good. (Cass. Civ., 1st of January 21, 1992, n ° 90-14.459).

But the spouses are not free to do what they want and it must be admitted that the procedure, framed in article 1397 and following of the civil code, is not so simple.

The modification of the matrimonial regime is made before a notary and submitted to the court for approval.

Indeed, any change affecting the patrimonial relations of a couple is a serious act, because likely to limit the guarantee to which their creditors can claim, but also to unbalance the inheritance rights of their heirs.

And to ensure that this balance is not constantly called into question by their own will, the spouses must respect the substantive conditions put in place by the legislator.

The conditions required to change the matrimonial regime

A two-year waiting period

Article 1397 of the Civil Code states that after "two years of application of the matrimonial regime, the spouses may agree, in the interest of the family, to modify it or even to change it entirely".

You cannot change the matrimonial regime before the period of two years from the day of the marriage or from a previous change of matrimonial regime.

In law, the passage of a period of time is the means of ensuring that the parties have given careful thought to the importance of the act envisaged. This also ensures a minimum of stability towards both creditors and heirs of the spouses.

The intervention of the notary

The new agreement is established with a notary (article 1397 paragraph 1). The change of regime is established in the form of an authentic instrument.

The modification must take place in the presence of both spouses to obtain their simultaneous agreement. They may be represented by a representative with special power. They will have to reiterate their agreement at the time of homologation.

It is the notary who receives the objections made by the children and the creditors against the envisaged change. It is therefore he who informs the spouses.

In the event of opposition, the deed is drawn up by the notary and disputes are settled by the judge during the homologation.

Judicial homologation of the new convention

The notarial act is subject to the appreciation of the family court judge (JAF) of the TGI of the family home (article 1397 paragraph 1 of the civil code and 1300 of the code of civil procedure).

The procedure

The referral to the JAF must be made by a joint request from the spouses. Legal representation is compulsory.

The new convention is annexed to the request which is submitted for publicity in order to inform third parties of the intention of the spouses (articles 1301 and following of the Civil Code and 1292 of the Code of Civil Procedure).

The approval judgment can only be made one month after the publicity formalities.

The discretion of the JAF

The judge checks the validity of the consent of the spouses and respect for the family interest. Children and even third parties (creditors) interested in the modification may be heard during the procedure and assert their interests.

The consent of both spouses

The judge ensures the free and informed consent of the spouses.

If one of the spouses is a protected adult (curatorship or guardianship) it will be necessary to obtain the authorization of the family council or the judge of guardianship.

The interest of the family

This is in the interests of the spouses, but also that of the children, since this affects their inheritance rights. It's all about balance. This is how the Court of Cassation refused to allow spouses to pass under the universal community regime, with full attribution of the common property to the surviving spouse, in order to preserve the inheritance interests of the children (Cass. Civ., 1st of 6 Jan. 1976, n ° 74-12.212 and Cass. civ., 1st of May 25, 1982, n ° 82-12.972).

The adult children of the couple will have 3 months, from the day they are informed, to oppose the change in the matrimonial regime of their parents.

This opposition must be made by registered letter with acknowledgment of receipt to the notary in charge of drawing up the deed.

In the absence of opposition within 3 months of being aware of the modification, they will be deemed to have consented to the change in the matrimonial regime of their parents.

The legitimate interest of third parties

This interest is observed with regard to third parties. This is to ensure that the spouses do not organize their insolvency, nor conceal, or make certain assets unavailable and therefore inaccessible to their creditors.

Third parties will have 3 months to oppose the change of regime from the publication in a newspaper of legal notices.

The advertising of regime change

Article 1397 paragraph 5 provides that the approval decision must be publicized with:

  • Its publication in a newspaper of legal notices;
  • His notification to the notary who must mention the change on the minute of the marriage contract of which he holds the original;
  • Its notification to the civil status officer with mention of the new convention on the marriage certificate;
  • Its registration with the conservation of mortgages (if the change affects the fate of immovable property);
  • Its registration in the trade and companies register if the spouses, or only one of them, is a trader;

The change of matrimonial regime is entered in the civil register.

The remedies

In the event of refusal of homologation, the spouses can appeal against the decision refusing the homologation, and then lodge an appeal in cassation.

In the event of approval of the new agreement, when third parties (creditors of one or both spouses) had not been informed of the change, they will have one year to exercise the third-party opposition.

But article 1397 paragraph 6, conditions the action to the obligation of the creditor to the proof of a fraud between the spouses. This means that he must demonstrate that the sole purpose of the change was to shield property from the action of creditors and create their insolvency. Which, in fact, will be very difficult to demonstrate.

The effects of the change of matrimonial regime

The previous matrimonial regime is liquidated, that is to say, dissolved. It no longer exists and is no longer intended to govern the patrimonial relations of the spouses.

Between the spouses: The new regime takes effect from the establishment of the notarial deed or, in the event of opposition, from the approval judgment.

Towards third parties: The agreement will take effect 3 months after the publicity formalities (publication in a newspaper of legal notices, entry alongside the marriage certificate, in the trade and company register, etc.).

Note: The change does not affect donations made to spouses by third parties.

This is the hypothesis of the donation made by parents to their child, and therefore to one of the spouses. These donations are not revoked by the change, but if the spouses pass from a regime of separation of property to a regime of community, they may pass into the common mass of property.

As a precaution, the donor wishing that only his child will benefit from the granted gift, may make the continuation of the gift conditional on the absence of any change in the matrimonial regime.

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A comment

  1. Hello Miss, Sir
    I have a question please.
    What happens if the children have not been informed of the change in the matrimonial regime of their parents?
    Should there be this document?
    Merci de votre réponse

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