What happens in the absence of a marriage contract?
April 17, 2019
Marrying without a marriage contract also means opting by default for the so-called “legal regime”, whose failure to comply with the applicable rules is a violation of public order.
I. Why choose a matrimonial regime before getting married?
The law of matrimonial property regimes is the set of rules that govern the property of spouses during and after the dissolution of the marriage.
In addition to the primary mandatory regime imposed on spouses, they must choose a matrimonial regime. In the absence of choice, they are subject to the legal regime of the community reduced to acquisitions.
There are several types of matrimonial regimes, including treaty regimes:
The regime of the community of furniture and acquisitions, enshrined in article 1498 of the Civil Code,
The regime of universal community, enshrined in article 1526.
The regime of participation in acquisitions, enshrined in article 1569 of the Civil Code,
The regime of separation of property, enshrined in article 1536 of the Civil Code.
II. The legal regime of the community reduced to acquisitions.
The legal regime of the community reduced to acquisitions is the regime that systematically applies when the spouses have not opted by contract for another regime. Before that, the legal regime was that of the community of furniture and acquisitions. Thus, all spouses married without marriage contracts before February 1st, 1966 remain subject to a community regime. On the other hand, all couples that have married since February 1st, 1966 without a marriage contract are now subject to the regime of community reduced to acquisitions.
How are the assets distributed within this legal community?
The distribution of property is divided into three categories: the legal assets of each spouse (the assets of the husband and the assets of the wife) and a group for the communal assets of the couple. Intangible property, such as licences and social rights, is the property of the spouse who acquires it. However, in some cases these can be considered as communal property amongst the couple, and are therefore considered as mixed assets.
1. The common assets or common property of the spouses.
Article 1401 of the Civil Code provides that the community asset group consists of the acquisitions made by the spouses together or separately during the marriage and resulting both from their personal industry and from savings made on the income from their own property.
Attention article 1402 of the Civil Code stipulates that doubt benefits the community assets. That is to say, any piece of furniture or building, which cannot be proven to be specific to one of the spouses, falls into community assets. The absence of proof of the personal nature of the property therefore obliges it to enter the category of common property.
The common property acquired during the marriage is therefore considered to be communal assets. This applies to all movable, immovable, tangible or intangible property. Such property may have been acquired by the spouses together or by one of them. Each of the spouses' personal industries (assets created by the spouses' work during the marriage, the earnings and wages produced by the spouses' personal industry) are considered to be communal assets. (Civil 1st February 8, 1978, Civil Bulletin I No. 53).
Gains and income made from owning property are considered communal assets as soon as they are received. Goods from personal industry are communal assets. We therefore have business assets, civil clientele (a distinction is made here between title which is proper and finance which is common), literary and artistic creations, enshrined in Article L121-9 of the Intellectual Property Code which makes a difference between the moral right, which is specific to the author's person, and economic rights which are communal if they were acquired during the marriage.
If a property is purchased with the money from the sale of communal property then the new property acquired is also common, this is called a common property by subrogation. The new property subrogates itself to the old property sold and therefore remains common by subrogation.
Everything that unites or is incorporated into a common good is also considered to be a communal asset. For example, a construction on common land with income from owned property remains communal to both spouses. Work instruments that are ancillary to a business or operation that is part of the community are also common. These are assets by accession.
Mixed life insurance, in force on the day of dissolution of the marriage and underwritten with mutual funds (especially if the premiums are paid with salaries) remains an asset of the marriage as a whole.
2. Owned property.
Owned property is defined as property possessed by origin and by nature. Own property by origin, is property acquired by the spouses on the day of the marriage or before the marriage free of charge, by succession, donation or legacy. Article 1405 provides that these are assets owned or possessed by the spouses on the day of the celebration of the marriage. Owned property by nature is property related to the person. These include clothes, an action for compensation for bodily or moral damage, non-transferable claims and pensions. The work instruments necessary for the profession of one of the spouses are also by nature professional, unless they constitute an accessory to a business, or a communal development.
When a spouse is the undivided owner of property and acquires one or more other undivided shares, the share acquired even during the marriage remains the property of the spouse who acquired it, article 1408 of the Civil Code.
Property attained by subrogation is property acquired by exchanging property that belonged to one of the spouses in its own right, it remains the property of the other. However, if the purchase of the good or the exchange of the good was financed by income or earnings and salaries, then a reward is due to the individual that financed the good.
All sums of money or goods that replace owned property in a spouse's patrimony are considered as owned property. Article 1406, paragraph 2, of the Civil Code distinguishes between property acquired through reuse and employment, which is owned property in accordance with articles 1434 and 1435.
The use consists of using owned funds to acquire a property. The reuse consists in selling a property, recovering the sale price and then reusing the amount obtained to finance the acquisition of a new property. But the spouse during the acquisition must make a declaration; this declaration consists of indicating the origin of the funds used, which must be specific, and specifying how these funds are to be used to acquire a specific asset. This declaration must be included in the deed in order to inform third parties.
3. Mixed properties.
These are intangible assets acquired during the marriage. Because of their personal nature, they can be considered as owned property, 1401 paragraph 1 solely because they are attached to the person who holds them ("the title") but finance remains common (property law). This is the case for taxi licences, non-negotiable social rights, ministerial offices, pharmacies, etc., the transfer of which is subject to approval by the other shareholders because of the personal nature (intuitu personae) of the company concerned. (Civil 1st, October 18, 2005 Civil Bulletin I No. 373).
“Title” property denotes a right, and finance is the pecuniary value that this right represents and this value therefore falls into community assets. It is important to distinguish between what belongs to each spouse and what automatically falls into community.
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