Be careful, the law is changing! As of November 2017, Law No. 2016-1547 of November 18, 2016 on the modernization of justice in the XNUMXst century, provides for the transfer of the powers exercised by the registry of the District Court to the state officer civil.
From this date all the procedures will no longer be done in court but in town hall.
Until November 2017 the following provisions still apply.
Created by law n ° 99-944 of November 15, 1999, amended and codified in articles 515-1 to 515-7 of the civil code, the Civil Solidarity Pact (PACS), is a contract concluded by two adults of both sexes. different or of the same sex, to organize their life together.
Halfway between marriage and cohabitation, the PACS is a union that is both free and civil.
The rights of PACS partners tending to approximate those of married spouses. The major differences between PACS and marriage are that:
- Each partner keeps their last name
- The issuance of a residence permit for the foreign partner, pacsé with a French, or obtaining French nationality is subject to a prior assessment by the authorities.
- To inherit, the partner's name must appear expressly in the will (he will benefit from an exemption on inheritance tax)
- The partner will have no right to widowhood allowance, nor to the survivor's pension from the general social security system.
Two people of foreign nationality can conclude a PACS in France. However, if it is concluded abroad (in a French embassy), one of the two PACSes must be of French nationality.
The prerequisites for entering into a PACS
Exclusions to Pacs
Article 515-2 of the Civil Code provides for the exclusion of PACS from any person:
- Married: You should know that throughout the divorce procedure, the spouses remain married until the day of the final pronouncement of the divorce.
- Minor, even emancipated
- Protected: For adults under curatorship, the authorization of the tutorship judge and the curator is required; for adults under guardianship, authorization from the guardianship judge and the family council is required
Obstacles to Pacs
The impediments are the same as for marriage. The PACS cannot be concluded between:
- Direct ascendants and descendants (parents - children - grandparents - grandchildren)
- Collateral up to the 3rd degree (brothers - sisters - uncle - nieces - nephew)
- Allies (mother-in-law / son-in-law - father-in-law / daughter-in-law)
The conclusion of the PACS
The PACS convention
The agreement is a contract concluded between the future partners. It is very important and must be drafted with care. It governs the relations of the partners during the union, and fixes their rights at the time of separation. Its validity is subject to formal and substantive conditions.
The agreement must be written in French or translated into French and signed by the partners.
It must imperatively include the provisions provided for by law n ° 99-944 of November 15, 1999, and articles 515-1 to 515-7 of the civil code, which govern the PACS.
These are the statements relating to the free and informed consent to engage of future partners; the organization and modalities of their respective participations in the expenses of common life; the regime to which their property will be subject (joint ownership, separation of property); the fate of debts and property and in general terms of sharing in the event of separation.
In this regard, it is important to make a precise inventory of the goods that each partner owns in order to annex it to the agreement.
The conclusion of the agreement
The agreement can be concluded either:
- A private deed: It must be drawn up jointly by the partners on plain paper, and reflect the way in which the partners plan to organize their life together and their property. The deed is signed by both partners
- An authentic deed: The contract is then passed before a notary
Once drafted, the convention must be formalized: It is the declaration.
It can be done either at the district court or at the notary.
Reminder: As of November 2017, Law No. 2016-1547 of November 18, 2016 on the modernization of XNUMXst century justice provides for the transfer of the powers exercised by the registry of the District Court to the state officer civil. From this date all the procedures will no longer be done in court but in town hall.
Until November 2017, the following provisions remain applicable.
At the registry of the District Court (TI)
An appointment must be made with the clerk of the District Court. The future partners must appear in front of the clerk in person, with the agreement and all the required documents.
An identity document, a full copy or an extract with filiation of his birth certificate of less than 3 months mentioning, where applicable, the dissolution of the old PACS or the divorce; an attestation on the honor of the absence of a family tie or alliance; a sworn statement indicating the address at which they fix their joint residence ...
(Remember to inquire for the complete list of documents to be produced)
The clerk records the joint declaration of the partners by which they undertake to conclude the PACS.
The clerk then proceeds with the publicity formalities, but does not keep a copy of the agreement.
Mention is made of the declaration in the margin of the birth certificate of each partner with the indication of the identity of the other partner.
For persons of foreign nationality, the declaration is entered in a special register kept at the registry of the Paris tribunal de grande instance.
No civil status certificate is given to PACS partners (no family record book) and does not give rise to a ceremony.
With a notary
The interest of the notary is that his intervention will make the agreement an authentic instrument.
The future partners must go to the notary in person with the agreement (if they have done so under private signature), their identity documents, proof of address, etc.
It is up to the notary to register the agreement of which he will keep a duplicate, in the row of minutes (notary's registers) and to carry out the publicity formalities.
To know: In the event of serious impediment, the clerk, or the notary, can go to the hospital or to the homes of future partners.
The agreement will take effect between the partners from the registration and towards third parties from the advertising formalities.
Modification of the agreement
Like any contract, changes can be made with the agreement of both partners. It is a joint declaration that the partners write themselves on plain paper or in front of a notary.
They will then have to appear before the authority which received the initial declaration (the IT office or the notary), or send it by registered mail with acknowledgment of receipt (with a photocopy of their identity documents).
Once registered, the modification will be advertised.
The dissolution of the PACS
Several situations end the PACS:
The death of a partner
The death is mentioned in the margin of the birth certificate and the dissolution is recorded by the clerk or the notary who received the initial act.
Whether the partners marry together or with a third party. The PACS is automatically dissolved on the date of the marriage. The clerk or the notary, informed by the civil status officer responsible for celebrating the marriage, will be responsible for registering the dissolution.
If the rupture is a joint decision:
The partners send a joint declaration by registered letter with acknowledgment of receipt to the clerk of the district court or to the notary to register the dissolution of the PACS.
The notary or the registry must send both partners a registration receipt. The effects of the dissolution will take effect from the date of registration.
If the termination is a unilateral decision:
The principle of Pacs is that it can be terminated at any time. If a partner refuses to give his agreement to break it, it will be necessary to notify him of his decision by act of a judicial officer.
A copy of the deed is sent to the clerk of the court or to the notary who register the dissolution and carry out the publicity formalities.
The joint declaration or the notification of the dissolution are kept with the clerk of the district court or the notary.
The fate of goods
After the dissolution, the PACS partners will have to proceed with the division of their property either by mutual agreement or by applying the provisions provided for in the initial agreement (hence the importance of making an inventory and anticipating all situations of crises as for a marriage contract).
It is imperative to annex to the initial agreement an inventory of goods belonging to each of the partners. This will make it possible to distinguish which assets belong to each partner and which assets will be undivided.
If goods do not appear on the agreement, it will be possible to prove by any means (invoices certificates, etc.) that they were own goods, otherwise they will be presumed to be undivided.
However, certain goods acquired before or during the PACS will always remain their own, these are:
- personal property (photographs, family jewels, etc.)
- goods received by donation or inheritance, or purchased with sums received by donation or inheritance
Property acquired before the conclusion of the PACS
The partners remain the sole owners of the movable and immovable property they owned before the conclusion of the PACS. These are clean goods.
Goods acquired during the PACS
Since January 1, 2007, the common law regime for partners has been the separation of property (before it was joint ownership).
Joint ownership will only apply if it is expressly referred to in the PACS agreement.
To know to which regime the goods are subject, it will therefore first be necessary to refer to the agreement. If it does not provide for anything, we will apply the rules of the regime of separation of property.
Separation of property:
The goods purchased with their own funds by each partner throughout the PACS period are personal goods.
But in case of dispute and in the absence of proof (invoices ...) the property will fall into joint possession.
Goods purchased together or separately during the entire PACS period are presumed to belong half to each of the partners.
It does not matter whether the good was entirely, or for more than half, by one of the partners, all the goods will fall into joint possession. And this, without possibility of appeal.
The fate of debts
First of all, it will be necessary to stick to the convention. If it provides for specific provisions governing the fate of debts, they will have to be applied.
If nothing is planned, it will be necessary to apply the legal provisions which impose the solidarity regime on PACS partners.
Article 515-4 paragraph 2 of the Civil Code provides that PACS partners are “jointly and severally liable with regard to third parties for debts contracted by one of them for the needs of daily life and for expenses relating to the common accommodation ”.
As for spouses, debts contracted for the needs of family life and whose amount is not excessive, will be subject to the principle of solidarity. The partners will have to reimburse them even if they have not personally contracted them.
However, all debts that have no connection with family life or that are too excessive will be borne by the person who has personally contracted them.
Note: In the event of disagreement, the partners can always refer the matter to the Family Affairs Judge who will rule on the family and property consequences of the termination of the PACS.
The family court judge will rule under the same conditions as a divorce on the exercise of joint custody or visitation rights and accommodation of their common children, as well as the payment of alimony.
However, he will only be able to withdraw from the PACS agreement if the conditions provided for are contrary to the interests of the partners and the children.
To avoid any surprises, it is imperative to draw up a PACS agreement as complete and detailed as a marriage contract.