Traditionally, marriage contracts are limited to setting out the matrimonial property regime chosen by the spouses. A matrimonial property regime can be defined as a body of rules that govern the spouses’ ownership and management rights over assets during the marriage and their distribution and division at the dissolution of the marriage, whether it be by death or divorce.
It is however now possible, thanks to various EU Regulations to provide for more complex marriage contracts that take into account different aspects of the marriage and eventual divorce.
To be valid, a French marriage contract, must be signed before a Notaire
To be enforceable, and if French law applies to the matrimonial property regime, the marriage contract was entered into in France, or one of the spouses resides in France at the time of signing, French law governs the formal validity of the marriage contract. Consequently, the marriage contract will only be valid only if it takes the form of a notarized authentic instrument.
The role of the Notaire
Article 1394 §1 of the French Civil Code provides:
“All matrimonial agreements shall be drawn up by deed before a Notaire, in the presence and with the simultaneous consent of all persons who are parties thereto or their agents”.
Therefore, when spouses enter into a marriage contract, their agreement will be drafted by a Notaire, whose duties include explaining the marriage contract to the parties and confirming with the parties that each of them correctly understand every aspect of the agreement they are planning to enter into so as to ensure their consent is valid. It is important to keep in mind that a French Notaire is not a public notary, but an agent of the French state with legal training. The Notaire acts as a neutral public officer and is bound by confidentiality under his or her professional liability rules.
The Binding Force of Marriage Contracts Signed Before a Notaire
Authentic instruments have the highest legal and probative force, similar to that of a judgment. What is stated in a marriage contract can only be challenged through specific proceedings before the civil courts, and consequently outside or in parallel of divorce proceedings on the basis of a falsified public document. The burden of proof for these proceedings is very stringent and consequently only a handful of marriage contracts have ever been canceled.
In other words, a marriage contract is absolutely binding on the spouses once the marriage is celebrated, except in the very limited cases.
The different matrimonial property regimes in France
When the spouses have not signed a marriage contract, the spouses will be deemed to have opted implicitly for the default matrimonial property regime – the community of assets regime (le régime de la communauté d’acquêts). If the parties sign a marriage contract, they have the option of choosing one of the regimes defined by the French Civil Code:
- Separation of assets
- Universal community
- Participation of acquêts regime
The parties may also adopt these regimes, including the default community regime, by inserting special clauses in relation to the administration or the winding up of the matrimonial property regime during the marriage (in the event they wish to change regimes), in the event of divorce or in the event of death.