Characteristics of the different matrimonial regimes

All married couples, without exception, are subject to a matrimonial regime, by which is meant a set of rules governing the pecuniary interests of the spouses, the purpose of which is to regulate their property relations during the marriage and at its dissolution.

If no marriage contract was entered into by the couple, the default ‘legal community’ regime applies to the property of the spouses. However, the couple is free to adopt any other form of marriage contract, or to make changes to their existing matrimonial regime.

The legal matrimonial regime: Community property

Future spouses who decide not to enter into a specific marriage contract are automatically subject to the legal regime. This regime is founded on the principle of joint ownership restricted to property acquired during the marriage.

Under this regime, the following types of property are characterised as community property and are thus jointly owned by both spouses:

  • proceeds accumulated as a result of their employment (e.g. wages, salaries, fees, profits from a commercial activity);
  • fruits and revenues of property belonging to each spouse (e.g. rental payments received by one of the spouses who is the owner of an apartment rented to a third party);
  • property acquired for consideration by each of the spouses during the marriage (e.g. a car purchased by one of the spouses is jointly owned, even though it may be registered in the name of the purchaser).
Note that any property that neither spouse can prove as belonging to them alone is considered as joint property.

The following types of property are not characterised as community property but remain the separate property of one or the other of the spouses:

  • property owned by the spouse alone before the date of the marriage (e.g. car, home or furniture acquired before the marriage);
  • property acquired during the marriage, but which is personal in nature and therefore considered as the spouse’s private property (e.g. personal clothing of each spouse, family souvenirs);
  • property received as a gift or inheritance during the marriage by the spouse (e.g. a painting offered by a spouse’s parents as a birthday present, property inherited by a spouse from a deceased parent) unless the testator, donor or grantor stipulated otherwise.

Debts held by either of the spouses prior to the marriage remain personal. However, creditors may collect on this debt not only in relation to the separate property of this spouse, but may also come after assets having become community property through the actions of this spouse (for example, the latter’s income).

Debts incurred by either of the spouses for the maintenance of the household or the education of the couple’s children may be recovered against the entirety of community property.

When a debt became community property through the action of only one of the spouses, it cannot be recovered against the separate property of the other spouse.

Other matrimonial regimes

Married couples are not required to be subject to the legal regime, but remain free to adopt any other type of marriage contract they wish, provided this contract is not contrary to moral standards or certain imperative rules (e.g. spouses may not modify the legal order of inheritance by way of the marriage contract).

In order to facilitate the choices available to future spouses, the law envisages several other types of marriage contract stating how property relations will be regulated during the marriage.

For married couples not interested in being subject to the legal regime, the two most popular forms of marriage contract are those providing for (i) a universal community of property or (ii) the separation of property, whose effects are diametrically opposed.

Universal community of property

In concluding their marriage contract, a couple can establish a universal community of property. Under this regime, all property, both movable and immovable, present and future, becomes part of a joint estate and all debts are discharged from this joint estate.

Consequently, any property owned by either of the spouses alone before the marriage becomes community property, regardless of whether it is movable (e.g. jewellery, cars) or immovable (e.g. land, apartments). All property acquired during the marriage will also become community property.

In other words, in the case of universal community of property, the spouses no longer have any separate property. The only exceptions relate to property considered as personal in nature for one or the other of the spouses (e.g. personal clothing of each spouse, family souvenirs).

All of the married couple’s debts are the joint and equal responsibility of both spouses, even debts incurred by either of them before the marriage (e.g. a bank loan concluded 10 years before the marriage).

This regime is intended in particular for couples who are willing to share all of their income, even if they earn unequal incomes.

Separation of property

This is the exact opposite of the previous regime given that, under the regime of separation of property, there is, in principle, no property jointly owned by the spouses. All property belongs either to one or the other spouse.

Each spouse therefore retains the sole benefit and right to dispose freely of their property, as well as sole responsibility for its management.

Similarly, each spouse is alone responsible for their debts, whether or not these debts were incurred before or during the marriage. The only exception relates to debts incurred by either spouse for the maintenance of the household or the education of the couple’s children. Both spouses are always responsible for this type of debt.

The regime of separation of property is intended in particular for:
  • couples in which one of the spouses pursues a professional activity exposing them to the risk of personal bankruptcy (e.g. individual entrepreneur);
  • spouses with very unequal incomes who do not want their income to be considered as community property.

Regardless of the matrimonial regime adopted, the tax authorities can collect on tax debts from either of the spouses.

Formalities for the adoption of a marriage contract or a subsequent change in the type of contract

If no other choice is made, a married couple is automatically subject to the legal matrimonial regime. In this case, no formalities are required.

If, on the contrary, the spouses wish to be subject to rules other than those provided for under the legal regime, they must enter into a marriage contract signed before a notary.

The notary is also responsible for submitting the marriage contract to the public prosecutor’s office so that it can be transcribed in the civil register. This formality is essential in order to make the marriage contract binding on third parties (e.g. the creditors of either of the spouses).

Changing the marriage contract

Even after having opted for the legal regime, a married couple retains the right to adopt a different regime at a later date.

Similarly, spouses who have opted for a certain type of marriage contract, such as universal community of property, may later change their marriage contract into one providing for the separation of property, for example.

However, this change may only be made after the couple has been married for at least 2 years.

Changing the matrimonial regime requires a document drawn up and authenticated by a notary.

Liquidation of community property

A marriage is dissolved by the death of one of the spouses or by divorce.

In both cases, the matrimonial regime comes to an end and community property must be liquidated.

Liquidation requires the division of community assets and liabilities. This division is carried out between ex-spouses (in the case of divorce) or between one of the spouses and the heirs of the other spouse (in the case of the latter’s death), in line with their respective rights.

Under the regime of separation of property, as none of the assets or liabilities are jointly held, there is nothing to liquidate.

Matrimonial regimes

Comparative table of matrimonial regimes
  Legal regime Separation of property Universal community of property

Property owned prior to the marriage

Separate property Separate property Joint property

Property received as a gift or inheritance during the marriage

Separate property Separate property Joint property

Proceeds accumulated as a result of employment

Joint property Separate property Joint property

Fruits and revenues of property belonging to each spouse

Joint property Separate property Joint property

 

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