Prior to the formalization of their union, future spouses are strongly advised to reflect on the regime that should govern their lives. Indeed, the choice of the matrimonial regime is an important step that should not be neglected by the partners.
What is a matrimonial regime?
By matrimonial regime, we mean all the legal rules that must govern the pecuniary relations of the spouses as well as with regard to third parties. So whether it is the management of their property or their distribution in the event of divorce. Thus, the matrimonial regime will determine the patrimonial life of the couple and should therefore be adapted to their situation.
The matrimonial regime sets the rules for the organization of assets between the spouses. In general, when all is well, the spouses ask few questions about the exercise of the management of their property: they pay indiscriminately or in proportion to their respective resources all the expenses inherent in family life.
Very often, it is in the event of a crisis (separation, divorce, debts, donations, death…) that the spouses will be interested in the provisions governing their property relations to discover that, once married, they can no longer freely dispose of the property belonging to them.
Of course, it is possible by mutual agreement to change the matrimonial regime initially elected, but the related cost may prove to be significant since it will depend on the couple's financial situation. This is why, it is permissible from the beginning to choose after analysis of the legal consequences of each regime, a regime adapted to your marital situation.
It is, in fact, with regard to the matrimonial regime to which the spouses are subject that it will be possible to know who must pay such and such a debt; who has the right to sell, rent, or mortgage property; what happens when a spouse takes out a credit alone; how property is divided in the event of separation or divorce, etc.
The surprise is great when one of the spouses is a merchant or entrepreneur and he sees half of his business fall into the hands of his spouse, or conversely, when the latter discovers that he is bound by debts. professional contracts contracted by his spouse for the exercise of an activity in which he has never participated.
These are the challenges of the matrimonial regime.
The three kinds of matrimonial regime
There are three kinds of matrimonial regime, schematizing this gives:
- The community regime : " what's yours is mine " and " what's mine is yours »
- The separatist regime : " what's mine is mine " and " what's yours is yours »
- The conventional diet, established “à la carte”, according to the needs and assets of the spouses by taking the best of these two systems: “ what's mine is yours when it suits us ».
But, whatever the option chosen by the spouses, there is a common basis for these three regimes, the basic rules of which will always apply, it is the imperative primary regime.
We are now going to try to briefly present to you the characteristics, advantages and disadvantages of each matrimonial regime.
The regime of community reduced to acquests
The regime of community reduced to acquests (art. 1401 to 1418 C. civ) is the matrimonial regime applicable by default. This is why it is said to be the legal regime unlike the others which are conventional. Also, community reduced to acquests is the only regime that does not require the drafting of a notarized marriage contract. So it automatically applies to all couples who got married without wedding contract. These so-called goods own goods ».
The characteristics of the community reduced to acquests
The community reduced to acquests is governed by two essential principles:
Separation of property acquired by spouses before marriage
Indeed, all property acquired or owned by the spouses before the seal of their union is considered as “ own goods » and remain the exclusive property of each spouse who can dispose of them as they see fit (sell or rent them) without the agreement of the other. The origin (donation or inheritance) or the nature (movable or immovable) of these assets are of little importance. Only the anteriority of their acquisition before the marriage counts.
In addition to property acquired before marriage, there is also property received by each spouse by gift or inheritance during the marriage. These are also considered as own goods ". In addition, all the fruits or gains produced by the personal property remain the full property of each spouse, without forgetting the debts that these assets encumber. Everyone is the owner of their own property, but also responsible for the charges that encumber them.
The community of achievements
By “acquests”, we mean the property acquired by one or each spouse during conjugal life that is part of the common patrimony. Conversely, property acquired before marriage or received as a gift or inheritance forming the " own goods » to each spouse, the assets acquired for valuable consideration by each spouse during the union constitute the common property of the couple which must be shared upon the dissolution of the regime. It is important that the said goods acquests » have been acquired together or separately by the spouses. Indeed, unless otherwise stipulated or proven, all property acquired during the marriage is automatically considered as community property. This is why it is important to identify the source of the funds.
Most often, it is strongly recommended when acquiring (purchase) of property during the marriage, to make a declaration of reuse to identify the origin of the equity. Also, the fruits or gains produced by the common goods as well as the related debts, are common. On the acquests (commons), each spouse has all the powers to pass the legal acts of management alone. Therefore, each spouse can freely dispose of joint property. However, acts of disposal, for example the sale or donation of common property, require the agreement of both spouses. We are talking about co-management.
The advantages of community reduced to acquests
The community reduced to acquests is characterized by its simplicity and above all its gratuity. Indeed, no particular steps are necessary to benefit from its application since it is the system applicable by default in the absence of a marriage contract. Also, those subject to this regime are exempt from payment of notary fees.
In addition, it is a regime with simple accounting in the event of dissolution. The rule being that only common property during the marriage should be divided equally between the spouses. This egalitarian distribution is certainly an advantage since the spouse who did not exercise a professional activity during the marriage will not find his back to the wall financially in the aftermath of the divorce.
The disadvantages of the community reduced to acquests
Even if the regime of community reduced to acquests has the advantage of protecting the couple, since they at least preserve ownership of their own property, the fact remains that it also has disadvantages.
Indeed, the debts contracted during the marriage are “ pooled and each spouse is liable even for those contracted by the other spouse. The protection of own assets is therefore called into question since the creditors of the common fund will be able to be paid off in the own funds of each spouse.
Also, in the event of divorce, the spouse who contributed the most to the enrichment of the common fund may feel aggrieved by the equal sharing of common property.
Finally, important decisions (acquisition or sale of real estate acquired during the marriage) involve co-management (the agreement of both spouses). In practice, this can constitute an obstacle to the management of these assets.
To mitigate these disadvantages, it is generally permissible to adjust the legal regime by means of specific clauses drafted by a notary. For example, the precipitate clause allows, in the event of the death of a spouse, to allocate property to the surviving spouse (primary or secondary residence) without compensation. In the same spirit, the full community attribution clause makes it possible to assign the entire community to the surviving spouse. However, it should be noted that this clause has limits in the event of the presence of non-common children.
The implications of plan dissolution
During the dissolution of the regime due to death or divorce or motivated by a change of matrimonial regime, each spouse recovers his own assets if they have not entered into the community.
However, if one of the spouses has benefited from the community, he owes a reward to the community. Similarly, the community will owe a reward to a spouse if it has enriched itself thanks to its own property without there having been compensation.
Then, and they share the commons. Each spouse is entitled to half of the common property after repossessions and rewards. This is the community bonus!
The regime of the universal community
The universal community regime is a conventional matrimonial regime in which all the movable or immovable property, present or future, of the spouses is placed in the community regardless of their nature or origin.
In fact, common property constitutes all the present and future property of the spouses and will have to be divided in half in the event of the dissolution of the regime.
It is the ideal plan for couples without children or with common children who want the surviving spouse to retain all of the joint assets after the death of the other.
The characteristics of the universal community
The choice of the regime of the universal community supposes first of all the realization of a notarized marriage contract. In other words, the couple must have recorded their election in their marriage contract drawn up and signed by a notary.
By choosing the latter, the spouses undertake to pool all of their present and future assets. However, they can, by means of a clause included in the contract, specify the goods of which they wish to retain personal ownership.
Also, the choice of the said regime obliges the spouses to manage the joint assets concurrently. That is to say that each spouse can, in practice, have all the powers to administer and dispose of joint property alone, without having to request the prior authorization of their spouse.
However, this does not apply to important acts (donation or sale of a building or business) that require co-management (agreement of both spouses).
Also, since the property of the couple is common (art. 1526 c. civil), the fruits or gains produced by the latter as well as the related debts are also common.
The advantages of the universal community
The main merit of this diet is its simplicity. Certainly, it can be expensive because of the obligation to use a notary, but it preserves from the complex accounting in the event of dissolution of the marriage.
The principle being that in the event of divorce each spouse recovers half of the common heritage or in the event of the death of one of the spouses, the surviving spouse will inherit thanks to the clause of integral attribution of the community, the totality of the heritage in total exemption from inheritance tax.
The disadvantages of the universal community
While the full community allocation clause is often perceived as an advantage for the spouses, the fact remains that it constitutes a handicap for the children who will only inherit on the second death and will therefore have to pay consequent inheritance rights due to this deferral.
In addition, this clause disadvantages the children born of a previous union by depriving them of the patrimony of its author.
Finally, because of the principle of solidarity of debts, this regime is strongly discouraged for couples where one of the spouses is an entrepreneur since in the event of difficulty, the couple's creditors can seize all the assets of their heritage.
Consequences in case of dissolution of marriage
In the event of dissolution of this scheme due to a change of scheme or caused by the death of one of the spouses, all goods, of all origins (respective assets existing on the day of the marriage and assets constituted during the marriage) the surviving spouse will recover the half of the common heritage and will also be entitled to the other half as an heir in competition with the other possible heirs.
In concrete terms, the surviving spouse is considered to be:
- Owner of half of the commons
- Heir for the succession on the other half
However, the spouses can, through the play of a full community attribution clause allow the surviving spouse to recover all of the joint matrimonial assets on the death of one of the spouses. Generally, this clause precludes the succession on the first death which is only open on the death of the surviving spouse.
Nevertheless, in the event of the presence of children not common to the spouses, the latter may request recognition of their hereditary reserve. In this case, the surviving spouse recovers only half of the common patrimony and is heir to the other half in competition with the other heirs (article 757 and following of the Civil Code).
The separation of property regime
What is the separation of property regime?
The regime of separation of property as governed by articles 1536 to 1543 of the Civil Code, is a matrimonial regime in which each spouse retains full ownership of his property acquired before and during the union.
The principle is simple: each spouse is responsible for and owns the movable or immovable property that he acquired before and during the marriage (for a fee or free of charge) as well as personally incurred debts.
Consequently, everyone is free to dispose of them as they wish, for example alienating (selling) them or giving them away free of charge without the agreement of their spouse and using the price for a new acquisition of property without their needing to complete employment or re-employment formalities so that the new property becomes its exclusive property.
The advantages of the separation of property regime
The advantage of this regime lies in the fact that each spouse retains full administration and free disposal of their movable and immovable property. Also, the fruits and income produced by the latter remain the exclusive property of each spouse.
However, the main residence of the family enjoys special protection even if it belongs to one of the spouses. Indeed, one cannot freely dispose of it without the agreement of the other in this case, sell it, rent it or trade it.
Also, the debts concerning the maintenance of the household or the education of the children oblige the spouses jointly and severally. Everyone is required to pay the entire debt even if they did not incur the expense themselves. The assets of each are then engaged and can be seized. The case law has also specified that: the obligation to maintain and bring up children is a legal obligation of public order that cannot be waived "(Cas. 2th civ., May 2001 no. 99-15.714: JurisData no. 2001-009372; Dr. family 2001, 78, note Lécuyer; Bull. civil. II, no. 80, p.55; Defrenois 2001, 1353, obs. Massip).
The choice of this regime requires the establishment of a marriage contract with a notary. Generally, it is preferred in the presence of children from a previous union. In addition, the separation of property regime is more suitable for spouses with different financial situations who do not wish to bring into a community the property acquired through the fruit of their respective labor. Thus, when a spouse carries out a commercial, craft or liberal activity, the separation of assets makes it possible to protect the assets of his spouse. The creditors of this entrepreneur spouse will not be able to seize the property of his spouse to obtain payment of his professional debts.
The disadvantages of the separation of property regime
However, this diet also has its drawbacks! Indeed, since each spouse is responsible and owner of his property, each also assumes the tax burden relating to his property. In addition, this scheme can be penalizing when one of the spouses does not have enough income. This could unbalance the couple, complicate the responsibility for the education of the children and possibly lead to divorce where the less well-off spouse would find themselves without resources in the absence of a shared shared heritage.
Admittedly, the gift between spouses is possible but the regime of the separation of property is difficult to envisage when one of the spouses depends entirely on the other since in the event of divorce or death of one of the spouses, each retains the ownership of his property.
What happens in the event of dissolution of the separation of property regime?
Upon dissolution of the plan (death, divorce, regime change), only the division of undivided property (belonging to both spouses) is possible up to the respective contributions of each, the personal property of each spouse acquired before or during the union remaining his full property.
The system of participation in acquisitions
The system of participation in acquests (art. 1569 and following C. civ.) is a hybrid matrimonial regime. Also conventional, it combines both characteristics of the regime of separation of property and that of community reduced to acquests.
The characteristics of the system of participation in acquests
The choice of this regime is made by drafting a marriage contract with a notary.
As already mentioned, the regime of participation in acquests is a mixture of the regimes of separation of property and community reduced to acquests.
The rules applicable during the duration of the union
Throughout the duration of the marriage, the applicable rules are those borrowed from the regime of separation of property.
Indeed, all the property of the spouses is considered as property "clean". In other words, everyone retains full ownership of their property whether acquired before or during marriage, regardless of their origin (donation or inheritance) or their nature (furniture or real estate).
As sole owner, each spouse also retains full administration and free disposal of their movable and immovable property. Therefore, each of them can alienate (to sell) or rent his property without the agreement of his spouse and use this price for a new acquisition of property without having to complete employment or re-employment formalities to become the exclusive owner. Also, the fruits and income produced by the personal property of each of the spouses remain their exclusive property.
However, the family home enjoys special protection even if it belongs to one of the spouses. Indeed, the spouse, same owner, cannot freely dispose of the latter, in particular, sell it, rent it or trade it (art. 215 Civ.) without the agreement of the other.
In addition, the debts are clean. Each must answer personally for the debts or charges imposed on their assets. The creditors of a defaulting spouse cannot therefore be paid out of the assets of the other.
However, debts relating to the maintenance of the household or the education of children are jointly and severally binding on the spouses. Everyone is required to pay the entire debt even if they did not incur the expense themselves. Everyone's property is in fact committed and can be seized. This joint and several obligation is reiterated by case law in these terms: the obligation to maintain and bring up children is a legal obligation of public order that cannot be waived "(Cas. 2th civ., May 2001 no. 99-15.714: JurisData no. 2001-009372; Dr. family 2001, 78, note Lécuyer; Bull. civil. II, no. 80, p.55; Defrénois 2001, 1353, obs. Massip).
The advantages of the regime of participation in acquests
The system of participation in acquests aims to protect the interests of couples in which one of the spouses carries out a professional activity at risk (for example, contractor). In fact, when a spouse exercises a professional activity, the couple being governed during the union by the rules of separation of property, the other spouse is sheltered from the actions of creditors that may affect the assets of the professional spouse. in case of financial difficulties.
In addition, this scheme allows its dissolution (in the event of divorce, death or change of regime) to the spouse who is less enriched, because he has not been able to exercise a remunerated activity, to benefit from the enrichment of the other.
In short, participation in acquisitions makes it possible to preserve the independence of the patrimony of the spouses during the marriage and to establish its equal division at its dissolution.
The disadvantages of the regime of participation in acquests
The first inconvenience, which is not at all insignificant, of this regime remains the obligation to drafting a marriage contract by the spouses before a notary. However, these procedures are usually costly.
Finally, if the fact of having the less affluent spouse benefit during the duration of the marriage for failure to have carried out an income-generating activity of the wealth of the other is often presented as advantageous in this system, the fact remains unless that contributes at the same time to the impoverishment of the latter.
What happens at the time of the dissolution of the regime of participation in acquests?
Upon dissolution of the plan (death, divorce, regime change), the situation of the spouses is governed by the rules of the community reduced to acquests. That is to say, each spouse will be entitled to half of the property acquired by the couple separately.
Consequently, if there is enrichment, it is divided equally between the spouses. On the other hand, if one of the patrimonies is impoverished, the spouse concerned bears this impoverishment alone. But when the two patrimonies are in surplus, only the difference between these two surpluses is shared for the benefit of the spouse whose gain was the lesser.
In principle, the participation claim must be paid in cash. Exceptionally, the participation claim may be paid in kind. The debtor spouse will just have to transfer the ownership of one of his assets to his spouse.
In any event, the spouses may, by mutual agreement, arrange the composition or division of their assets. Thus, the notary can, through a clause, exclude professional property in order to avoid taking it into account in determining the participation claim. In the same spirit, an unequal sharing clause may also be included.
