Entering into a contract before the celebration of the marriage allows the future spouses to derogate from the matrimonial regime of the legal community which will be intended to apply automatically to married people.
The contract allows the future spouses to choose all the rules that will govern their patrimonial relationships. This determines the ownership and management of their personal and common goods, as well as their transmission to their descendants.
This choice can be made before the marriage (the marriage contract) or during the marriage (it is change of matrimonial regime).
The marriage contract is a solemn legal act, drawn up by a notary and subject to publicity to be enforceable against third parties. As such, it is strictly framed by the provisions contained in Articles 1394 et seq. Of the Civil Code.
A notarial deed
The notary intervenes to advise and protect the future spouses, since the act occurs before the marriage. It is not a question of concluding the deed under private signature and then depositing it with the notary as is done in divorce matters by “diverted from” mutual consent.
The future spouses must go together to the notary.
The original of the deed, written in French, is kept with the notary (in the row of minutes), the spouses only have a copy. To be valid, it must be stamped and signed by the notary and the future spouses.
If the marriage does not take place, the contract simply lapses.
This is a contract, so the free and informed consent of the promises is required. In principle, they appear and sign the deed in person, however they may be represented by a representative with a special power of attorney.
The ability to enter into a marriage contract
« Habilis ad nuptias, habilis ad pacta nuptialia Whoever can marry can consent to a marriage contract.
This means that the capacity required to enter into a prenuptial contract obeys that of marriage. You have to be of legal age to get married. However, exemptions can be granted to allow the minor to marry. therefore a minor and a protected adult can validly conclude the act, but under certain conditions.
According to Articles 144 and 145 of the Civil Code, anyone can get married without formality from the age of 18.
Before this age they will need an exemption, even if they are emancipated (article 148 and 481 paragraph 2 of the civil code).
Article 1398 of the Civil Code provides that "a minor to contract marriage is entitled to consent to all agreements to which this contract is liable ... Provided that he has been assisted, in the contract, by persons whose consent is necessary for its validity. marriage… ".
The marriage contract is concluded by the minor alone, but in the presence of the persons whose consent was required for the marriage. These are mainly those with parental authority (parents, a third party, etc.) or an agent: This is representation.
If the act is passed without assistance, “the annulment may be requested by the minor or by the persons whose consent was required…” (article 1398 paragraph 2).
The annulment action must be brought at the latest within one year of the minor having reached the age of majority.
The conclusion of a marriage contract will follow the same assistance and representation regime as the marriage of a protected person.
Under safeguard of justice, the adult can freely marry and therefore, conclude a marriage contract without assistance or representation. But the act may be called into question if it later turns out that he was suffering from mental disorders at the time of the conclusion of the act.
Under curatorship, the middle finger must be assistants of its curator. In the event of refusal of assistance or of opposition from the curator, the adult may request authorization to carry out the act alone from the guardianship judge.
Under guardianship, the middle finger must be represented by his guardian (article 1399 of the civil code).
Freedom of choice of matrimonial regime
In terms of matrimonial agreement, the principle is that everything is possible.
The future spouses may freely choose the extent of their respective powers, rights and obligations to which their matrimonial regime.
They will be able to adapt the legal regimes (community, separation of property, participation in acquisitions…) or opt for an “à la carte” plan depending on the personal, professional and financial situation of the couple.
They will be able to consent to liberalities or donations with a view to marriage (it is the dowry!) or in the inheritance.
These are first and foremost primary regime rules which will apply to spouses regardless of the matrimonial regime chosen. Thus, a clause providing that a spouse could freely dispose of family accommodation or furniture without the consent of his spouse would be absolutely void.
The clauses of the marriage contract must respect public order and good morals.
Some regimes, straight out of the XNUMXth century, are now prohibited because they are contrary to matrimonial public order, but as a "historical" example, let us quote:
- The dowry regime: the wife's real estate is exclusively managed by the husband. The woman only enjoys paraphernal rights (yes!… This means that the woman can only freely dispose of goods which are not covered by the contract and not included in the dowry).
- The regime without community: The spouses do not live together (Madame is isolated in the countryside) and only the husband has the power to manage and administer the goods of the wife.
Note: The marriage contract follows the general principles of the contract in matters of defect of consent and may be canceled if it turns out that the adult or minor had consented to it by mistake, violence or fraud.
Publicity of the act
The marriage contract must be published, that is to say brought to the attention of the public (article 1394 paragraphs 2 and 4 of the civil code).
The notary gives the future spouses a certificate which will be given to the civil officer before the ceremony. During the celebration of the marriage, the spouses will be asked if they have made a marriage contract and must specify the name and place of establishment of the notary to register it on the marriage certificate.
In the event of breach of the advertising conditions, the contract will not be void, but unenforceable against third parties. This means that even if the spouses opted for a regime of separation of property, as long as the deed is not published, a creditor can take action against the two spouses under the community regime.
Note: If the marriage contract is concluded by a future spouse having the capacity of trader, the act must be the subject of an advertisement in the trade and companies register (article 1394 paragraph 4 of the civil code).
The procedure must be made by the notary in the month following the conclusion of the deed. He must send an extract from the marriage contract to the clerk of the commercial court specifying the matrimonial regime to which the future spouses are subject.