Atlas

France

France regulates three models concerning the relationship of couples:

  • MARRIAGE between persons of the same or different sex;

  • REGISTERED PARTNERSHIP (Pacs) between persons of the same sex or different sex;

  • DE FACTO COHABITATION between persons of opposite or same sex.

The first two are regulated by the Civil Code, the last one is only recognized by Art. 515-8 of the Civil Code but not regulated by it.

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DISCRIMINATORY RULES

Marriage, registered partnership and de facto cohabitation are allowed for both, opposite and same-sex couples. The de facto cohabitation is recognised but is not regulated. The first two are regulated by the Civil Code, however, there are still some differences between the legal regulation of the two types of family formations. For example, in the event of the death of the partner, the surviving partner in a registered partnership does not have a legal right to inherit.

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Links to applicable regulations

  • PRIVATE INTERNATIONAL LAW: common law (for couples married before 1 September 1992), Hague Convention of 14 March 1978 applies to the law governing property regimes (for couples married between1 September 1992 and the 29 January 2019) and the EU Regualtion 2016/1103 (for couples married after 29 January 2019, or for marriages contracted before that date when the couple has chosen a law applicable to their matrimonial regime starting from 29 January 2019).

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MARRIAGE

  • The French Civil Code sets two kinds of rules related to the matrimonial property relationship between spouses: (1) the basic mandatory matrimonial rules (régime primaire impératif) that applies to all married couples and (2) the specific matrimonial property regime chosen by the spouses before the marriage (or during the marriage if the spouses decide to modify their matrimonial property regime).

The French Civil Code contains in its Articles 212-226 a list of rights and duties of the spouses that apply without having regard to the specific property relationship of the spouses. This means that those rules, often called régime primaire impératif (basic mandatory regime), apply to all married couples. All the rules stated in this basic mandatory regime aim to concretely ensure not only that the normal needs of the family can be met, but also that the independence of each spouse is safeguarded. They are obligatory, uniform, guidelines for all married couples, and they may not be excluded by an agreement to the contrary. Spouses first owe each other respect, fidelity, support and assistance (Art. 212 French Civil Code). They are both together responsible for the material and moral guidance of the family (Art. 213 French Civil Code).

The specific matrimonial property regime chosen by the spouses may also contain some rules related  to  joint  ownership.  For example,  in  the  conventional  (optional)  regime  of  separation  of property,  normally  each  spouse  has  personal  assets;  there  are  no  common  assets.  But  if neither spouse can prove that an asset belongs to him/her personally, the asset is deemed to be jointly owned by both spouses (see Art. 1538 para. 3 French Civil Code: joint ownership of the half for each spouse).

Where there is no matrimonial property agreement the spouses are subject to the community of property regime: the community of acquisitions (Articles 1400-1491 French Civil Code). Assets acquired for valuable consideration after the marriage are joint. However, assets already owned by one of the spouses on the day the marriage is celebrated, or acquired through gift, legacy or inheritance and assets of a "personal nature" are owned separately (Article 1404 French Civil Code).

The French Civil Code regulates three types of  matrimonial property regimes  besides the default of community of property: (1) the conventional community (Art. 1497-1528 French Civil Code), (2) the separation of property (Art. 1536-1543 French Civil Code) and  (3) the participation in acquisitions (Art. 1569-1581 French Civil Code).

  • A community is dissolved by: (1) the death of one of the spouses, (2) declared absence, (3) divorce, (4) judicial separation, (5) separation of property, (6) change of matrimonial property regime.

When the matrimonial property regime is dissolved by divorce or judicial separation the same rules will apply. However, in those cases priority allotment is never as a matter of law. It may always be decided that the total of a net balance possibly due will be payable in cash (Art. 1542 para. 2 French Civil Code). In case of divorce or judicial separation Art. 1751 French Civil Code will also be applicable. The right to a lease of premises is considered to belong to both spouses. In case of divorce or judicial separation, that right may be allotted by the court, accounting for the social and family interests concerned, to one of the spouses, saving reimbursement, or to the other spouse.

  • In the event of the death of a spouse, the matrimonial property rights must be settled before settlement of the estate proper. After settlement of rights arising out of the matrimonial property regime, the following rules apply.

The situation differs in case of testate and intestate succession. In case of intestacy, the rights of the surviving spouse vary according to the other heirs (Art. 756 et seqq. French Civil Code ). If there are living descendants, the surviving spouse inherits the usufruct of the entire estate or the ownership of one quarter thereof (Art. 757 French Civil Code). If the father and mother of the deceased are living, each of these inherits one quarter, with the remainder devolving to the surviving spouse (Art. 757-1 French Civil Code). In the absence of descendants or of the father and mother of the deceased, the surviving spouse inherits the entire estate (Art. 757-2 French Civil Code). If the deceased leaves a will, the surviving spouse, where there are no descendants, is entitled to a reserved portion (forced heirship). Reserved portion is one-quarter of the assets in the estate (Art. 914‑1 French Civil Code).

Some legal provisions in succession law (contained in the French Civil Code) aim at safeguarding a certain standard of living to the surviving spouse: in some cases he or she is heir-at-law, some assets can be preferentially allocated to him or her (attribution préférentielle); succession law provisions also contain some rules reinforcing the existence of a status of the family home; for example, Art. 763 French Civil Code: if at the time of the death of one spouse the other spouse effectively lives in a home either belonging to both spouses or only to the deceased spouse, the surviving spouse automatically has the right to stay in the dwelling for one year free of charge, and to use during the same time the pieces of furniture which furnish the dwelling (droit de jouissance gratuite). This right, stated in Art. 763 of the French Civil Code, is a direct consequence of the marriage (Art. 763 para. 3) and not a succession right. It is a mandatory rule that the deceased spouse may not set aside by bequeathing the family home to another person in a will). If a marriage is dissolved by death, the surviving co-lessee spouse has an exclusive right to the lease of the family home, except where he or she expressly renounces it.

 

REGISTERED PARTNERSHIP (Pacs)

  • In the case of a registered partnership (Pacte civil de solidarité, PACS), special rules are set in Articles 515-4 et seq. od the French Civil Code with regard to the personal and to the property relationship between the partners.

Some rules that are similar to some of the basic mandatory regime related to spouses do apply. Firstly, in accordance with Article 515-4 of the French Civil Code, partners bound by a civil covenant of solidarity shall live together and provide mutual material and moral aid to each other. The terms of that aid depend on the financial means of each partner. If no agreement has been made with regard to the amount of the financial support, it shall be in proportion to their respective financial means. Secondly, the partners shall be jointly and severally liable with regard to third parties for debts incurred by one of them for the needs of everyday life, except where those expenses are obviously excessive (Art. 515-4 para. 2 French Civil Code). This is the parallel provision to Art. 220 of the French Civil Code that applies to married couples. This legal provision relates to the debts resulting from the usual needs. Thirdly, Art. 515-5 para. 3 of the French Civil Code states that the partner who is in possession of a movable assets  is deemed to have the power to act alone (administration, use or disposition acts) with regard to this asset towards third persons who are in good faith.

With regard to the patrimonial regime, since the Act n°2006-728 of 23 June 2006, the legal regime of PACS is that of separation of property. Art. 515-5 (new) of the French Civil Code stipulates, in fact, that unless partnership property agreement provides otherwise, each partner keeps administration, has use and free disposition of his or her personal assets and has the personal obligation to pay his or her personal debts which occurred before or during the PACS. If no partner can prove that one asset is his or her personal property, the asset is deemed to belong jointly to both partners (Art. 515-5 para. 2 of the French Civil Code).

Pursuant to Article 515-5-1 of the French Civil Code, the partners may, by agreement, choose to submit to the regime of joint ownership the assets which they acquire, together or separately, from the registration of these agreements.

  • In sucession law in the event of the death of the partner, the surviving partner in a registered partnership does not have a legal right to inherit.

He or she, therefore, inherit only if he or she has been named as an heir in a will. However, only the disposable (non-reserved) portion can be bequeathed to the surviving partner. Registered partners have a temporary and gratuitous right of one year to use and enjoy the family home (and its furniture) after the death of their partner, provided that this was their main home in which they were actually living at the time of the death, pursuant to Art. 515‑6 of the French Civil Code.

 

DE FACTO COHABITATION

  • Unregistered partnerships (cohabitation) are recognised by Art. 515-8 of the French Civil Code but are not regulated.

Especially the French Cour de cassation held that concubines are not obliged to contribute to the marriage expenses (contributions aux charges du mariage) in the meaning of article 214 of the French Civil Code and that the joint obligation (solidarité) of Art. 220 of the French Civil Code with regard to expenses related to the matrimonial life and the children’s education does not either apply to them.

Based on national report provided by Maria Virginia Maccari