Provided for in articles 212 to 226 of the civil code on primary matrimonial regime regulates “the respective duties and rights of the spouses”.
It should not be confused with the legal regime of the community which will automatically apply whenever the spouses have not concluded a marriage contract.
The primary system is the common law of matrimonial regimes. It lays down basic, imperative rules which will apply to all spouses, even those of foreign nationality, regardless of the matrimonial regime to which they are subject (legal regime of the community, separation of property …).
It fixes between the spouses the fate of marriage charges, debts, common goods including family housing, and governs the social, economic and contractual relations established with third parties (employer, banker, lessor, etc.).
The particularity of the primary system is that it protects the independence of each of the spouses within the couple while strengthening their solidarity with third parties through the mechanism of representation.
Therefore, it does not matter which spouse acts, buys, sells, rents, contracts… he will, with some exceptions, always be supposed to act in the name and with the agreement of his spouse.
This principle of representation will apply both for the management of their property and their joint accounts and for the exercise of an activity practiced jointly.
Management of common goods
The primary regime to which the spouses are subject does not reduce the rights that each spouse has over his own property. Article 225 of the Civil Code “Each of the spouses administers, obliges and disposes of his personal property alone”.
The movable goods which they own in common are managed under the mode of representation. Article 222 of the Civil Code establishes the principle of a presumption of mandate granting each spouse the right to act alone.
For example, a spouse can sell, rent and even give away movable property without having to demonstrate that he bought it with his own funds, nor produce his spouse's authorization to carry out the transaction. This applies to movable property of all kinds: bicycle, lawn mower, car, etc.
Everything… Except furniture, that is to say, “furniture” used by the family, such as: Furniture (sofa, beds, tables, sideboard…); household appliances (refrigerator, washer, stove, etc.); electrical appliances (coffee maker, toaster, microwave oven, etc.); electronic devices (computer, television, stereo system, etc.); and works of art (portrait, painting, sculpture, etc.) ...
These pieces of furniture benefit by extension from the same protection as family accommodation (except if they are used in a second home). So, even if they belong to one of the spouses, the latter will not have the right to dispose of them without the express consent of their spouse.
But in fact, Article 215 paragraph 3 of the Civil Code requires the agreement of both spouses only for acts of disposal (sale of a building). So, even if it is “protected” furniture, it should be noted that a spouse is not required to prove that his spouse has consented to the transaction since… the presumption of representation will also apply here.
A spouse can therefore sell all the furniture in the house, he will always be supposed to act with the agreement of his spouse, and this presumption will apply to all intangible assets (bearer securities, cash, etc.).
The spouse who had not consented to the sale may turn against his spouse and engage his responsibility. He may also take action against the purchaser of the property if he manages to demonstrate his bad faith, (that is to say, prove that he knew that the husband could not sell him a property without the authorization of the joint).
The sanction will be the nullity of the sale.
Management of earnings and salaries
The law of December 23, 1985 allows the spouses to freely dispose of their salaries within the limit of the costs of the marriage. It is therefore only after having fulfilled the current expenses inherent in family life that each of the spouses will be able to freely use what remains of their income.
The principle is that once he has discharged his responsibilities, the husband can do what he wants with his money, it is the strict application of article 223 of the civil code.
Note: In terms of seizure of a spouse's income, the primary system provides that "The earnings and wages of a spouse can only be seized by the creditors of his spouse if the obligation has been contracted for maintenance. of the household or the education of children in accordance with article 220 of the civil code.
The earnings and salaries of a husband can also be seized to repay a loan contract to which he had given his consent (when he stands surety).
Managing a joint account
According to the principle laid down in Article 221 of the Civil Code, each of the spouses has financial autonomy.
They can freely open an account with a bank (deposit bank, current account, securities account, including CCP, Savings bank, etc.) in their personal name or in both names: This is the joint account ( there can be no joint account for the opening of a PEL, PEA, or a Livret A)
Such accounts opened in the name of "Mr. or Mrs." are very practical for the payment of current charges, loans, real estate loans ... Each spouse can on his own initiative carry out all the operations he wishes.
The joint account and all related banking operations (deposit, withdrawal of money, checks, credit cards, one per person, etc.) are subject to the presumption of representation: Each operation is assumed to have taken place with the consent of the other spouse.
It does not matter who opened it and who deposits funds in it, each of the spouses will have free disposal of the funds without having to justify themselves: it is active solidarity.
Just as, regardless of which spouse empties the account, his or her spouse will be required to answer for the debts in the event of an overdraft or the issuance of a bad check: This is passive solidarity.
Note: In the event of marriage dissolution (death or divorce), the presumption of representation does not automatically cease and continues to operate in the name of the two ex-spouses until it is closed.
And closing a joint account isn't as easy as opening it.
Professional collaboration of the spouses
Provided for in article 223 of the civil code lays down the principle of the free exercise of a profession to each of the spouses.
But what concerns us here concerns the situation of the spouse who participates in the activity of his spouse without being remunerated. At the risk of falling into a caricature, we think of the baker's wife who holds the cash register, that of the farmer who feeds the chickens ...
It is not a question here of dealing with the problem of the social contributions of the collaborating spouse nor of the various statuses from which he benefits, but of observing the legitimacy and the consequences of the current management acts carried out by this spouse towards third parties. How valid will transactions with suppliers be?
The participation of the spouse will again be placed under the regime of representation in three distinct areas: trade, crafts and agriculture.
The partner's collaboration in a commercial or craft activity
The principle is that the spouse who collaborates in the activity of his spouse will not have the quality of trader. Indeed, the law of July 10, 1982 provided that "The spouse of a trader is himself deemed to be trader only if he exercises an activity separate from that of his husband". The Madelin law of February 11, 1994 (decree n ° 94-738 of August 26, 1994) extended this status to spouses who simultaneously exercise part-time salaried activity not exceeding 85 hours per month.
The collaborating spouse therefore enjoys a special status because, without being a trader himself, he can exercise all commercial acts in the name and on behalf of his spouse.
The principle is that he will be deemed to have received from the head of the company the mandate to exercise all administrative acts necessary for the proper functioning of the company. For this it must be declared in the trade and companies register (traders), in the directory of trades (craftsmen).
Each spouse may put an end to this presumption of mandate by declaration before a notary. It will be enforceable against third parties 3 months after the mention has been made in the trade and companies register or in the trades directory.
The representation will automatically cease in the event of legal separation, property (legally pronounced) or absence.
The partner's collaboration on a rural farm
Created by the agricultural orientation law of July 4, 1980, amended by the law of July 22, 1993 and codified in articles L321-1 to L321-3 of the rural code.
The spouses who "operate together and on their own behalf the same agricultural fund" will be able to perform all acts of administration on the farm on the basis of the tacit mandate and representation.
The spouse who only collaborates in the agricultural operation is always supposed to have received a mandate from his operating spouse to exercise the administrative acts necessary for the management of the fund.
These principles of representation will apply whatever the matrimonial regime to which the spouses are subject and will cease in the event of legal separation, judicial separation of property, absence or on "declaration" of the spouse.
This last limit, the declaration, provides for the right for a spouse to officially end the representation and the presumption of the mandate granted to the spouse. This possibility is provided for in article 321-3 paragraph 1 of the rural code according to which "Each spouse has the option of declaring his or her spouse".
This presupposes a declaration made before a notary and duly published alongside the marriage certificate.
To be specified: The status of collaborating spouse has been extended to PACS partners but not to cohabiting partners.
The law of social modernization of January 17, 2002 created a real statute for the spouses of members of liberal professions which will be studied further with the collaborating spouses.
