There exists, in France, four types of matrimonial modes. The choice is paramount; it makes it possible to determine the goods whose married person can have being alive but also those which she will collect following the death of her partner or which she will leave following her death. With or without marriage contract, the spouses are obligatorily subjected to a matrimonial mode.
The separation of goods
There is no common inheritance. The goods which the spouses had before their marriage continue to belong to them personally, the goods acquired or received during the marriage belong to that of the spouses who acquired or received them. They can be goods coming from successions, gifts or legacy or of clean incomes (professional or different) and of the investments that the other spouse could realize while saving.
Each spouse has a total freedom in the management and the provision of its goods safe for the residence of the family.
The professional goods, the incomes and the debts of the one of the spouses are independent of the inheritance of the spouse. Each spouse is responsible for the debts which it contracts on his behalf and those related to its own goods.
The spouses take part in the education of the children and the loads of the household proportionally to their incomes.
The housing of the family cannot be sold without the agreement of the other (Article 215 of the Civil code). When with the furniture located in the housing of the couple, it is advised to make of it an inventory in appendix of the marriage contract, to determine what is with one or with the other of the spouses.
For the goods bought together, like an apartment, they are placed under the mode of the joint possession and belong to the two spouses in proportion to their respective contributions.
There exists nothing joint with the two spouses except:
- undivided goods, acquired by the spouses together,
- debts contracted for the maintenance of the household and certain common taxes (IR, STF and tax of dwelling).
An exception allows the spouse by mandate or legal authorization to manage and manage the personal goods spouse (if the spouse is out of state to express his will or puts in danger the interests of the family).
This mode requires a marriage contract drawn up in front of the notary, in theory, before the marriage. This contract will be chosen, preferably, when one of the spouses follows an occupation at the risks and wants to preserve its spouse of the debts that it is likely to contract within the framework of his activity and for a total patrimonial independence of the spouses. It is, on the other hand, dangerous, for the women without community activity.
With the dissolution of the mode, each spouse will take again its personal goods. The undivided goods will be divided. If the spouse took part in the community activity of joint sound and claims remuneration, it will receive an allowance if it proves that its participation went beyond its obligation to contribute to the loads of the marriage.
Community modes
Community of goods reduced to the acquisitions
It is the mode of common right, that to which you will be subjected if you made not marriage contract. Each spouse preserves the property of the goods of which he was already owner before the marriage as of all what he will be able to receive in succession, legacy or donations. They are what are called the “clean goods”.
All the goods acquired by the two spouses during their marriage are the “community properties” or “acquisitions”.
This mode is composed of three masses of goods: clean goods of the woman, clean goods of the spouse and community properties with the two spouses.
The management of the clean goods of each spouse
Each spouse to the capacity to manage and the free disposal of its own goods.
There are however two restrictions:
- family housing as well as the pieces of furniture furnishing it cannot be sold, given, exchanged or mortgaged without the assent of the other spouse, even if they belong into clean to the one of the spouses;
- the capacities of the spouse on his own goods can be transferred to its spouse by mandate or particular enabling from the Court of Bankruptcy, if a spouse is out of state to express his will or if it puts in danger the interests of the family.
The management of the community properties
Each spouse has the capacity to manage only the community properties and to have which it. It is what one calls the principle of concurrent management. That allows the one couple to realize, without formal agreement of the other, the common management acts.
There are however two exceptions:
- the assent of the two joint ones is necessary for the deeds of gift of the goods of the community,
- the spouses cannot one without the other sell, give in usufruct, mortgage or give in guarantee the buildings, goodwill, exploitations depending on the community. One speaks then about joint management.
However, a spouse can only give in hiring a residential building depending on the community, provided that the lease is of less than 9 years. The practice often requires the assent of the two spouses if the lease relates to the housing of the family.
With the dissolution of the mode, each spouse takes again his own goods and is entitled to half of the goods acquired during the marriage. He supports half of the debts. When one of the clean or common inheritances was impoverished with the detriment of another, it is held by it account by means of rewards, kinds of allowances which allow financial balance between the inheritances.
In the absence of agreement on the distribution of the acquisitions, the goods will have to be sold to make the division equal between all the parts.
Universal community
It is the mode which shares “” and also simplest. All the goods, pieces of furniture and buildings which the spouses have at the day of their marriage, those which they will be able to acquire thereafter or collect by succession, donation or legacy are common to both members of the couple. The spouses do not have any more any personal good. Each spouse loses the personal control of his own inheritance and cannot have which it any more freely. The management of the goods is done by the two spouses.
The existence of real goods implies nevertheless an intervention of the notary (certificate of property…).
Certain drawn up clauses make it possible to model this contract: the first relates to the goods which are personal, such as linens and clothing and repairs of physical injuries. Moreover, the instruments of work necessary to the profession of the spouses remain specific to each one, with load of rewards. However, a stipulation of the marriage contract can make them common to both spouses;
one second clause of the marriage contract can provide that the goods received by donation or heritage during the marriage remain the personal property of that which received them.
The couple is responsible for their personal debts on the whole of the community properties, whether these debts were made before or during the marriage.
At the time of the liquidation of the community, the community properties are divided with equal shares. If this liquidation makes following a divorce, each spouse thus recovers half of the community. If it makes following a death, the share of the late cost to its heirs.
Most of the time, a clause is inserted in the contract: the clause of integral attribution to the survivor. With the death of a spouse, the other collects the totality of the community without any death taxes to pay. There will be no joint possession, not accounts to be returned nor of division.
On the other hand, this clause presents important disadvantages for the children of the couple. The children do not inherit the first relative deceased and thus profit only once, with the second death, of the abatement in hot line (46 000 euros per relative and child). They will have to pay more important death taxes. This clause of integral attribution is irrevocable.
The Councils
This mode requires a marriage contract drawn up in front of the notary before the marriage and it is generally adopted by the old couples without children or whose children are with the shelter of the need, not very likely to divorce or with the couples which would have transmitted already much by donations to their children. This mode of universal community with clause of integral attribution is formally misadvised when one of the couple has already children of a first marriage. The latter have the right to take action in cutting off, with the death of their remarried relative.
Community of pieces of furniture and acquisitions
It is a mode which applies to the spouses married before February 1st, 1966 without to have made precede their union by a marriage contract, as a legal mode; married starting from February 1st, 1966 which chose this mode by marriage contract.
The community includes/understands the totality of the goods of the spouses:
- the movable property (including the goodwill…) what had the spouses before their marriage and of those which return to them during the marriage by succession or donation in the condition that the giver did not express an adverse opinion;
- the movable property and real assets subject to payment during the marriage.
The liability of community is made up:
- debts contracted by the two spouses during the marriage;
- debts contracted in the interest of the household by one or the other of the spouses;
- of a fraction of the debts former to the marriage and debts related to the legacies and donations from which the spouses profit during their marriage, this fraction being proportional to the value of what is brought to the community.
Each spouse only manages and has the community properties, but it is responsible for the faults made in its management.
The clean inheritance of each spouse is made up:
- real goods acquired before the marriage or collected during this one, on a purely free basis like those received in heritage or donation during the marriage except if the giver stipulated the opposite. Each spouse preserves the free provision of his own goods, except for family housing and of the “movables” which compose it, for which the free provision is subordinated to the assent of the spouse.
The furniture of interior as well as cash, the bank accounts, titles and stock exchange securities, actions and shares of company, goodwill, and civil customers are “movables”.
Whatever the matrimonial mode, certain personal goods are regarded as clean because of their nature
- personal clothing,
- disability, retirement pensions and food,
- damages granted in repair of a physical or moral injury,
- dismissal indemnities and allowances compensation,
- instruments of work.
To change matrimonial mode
With time, the needs evolve/move. Your matrimonial mode is not adapted any more to the interest of the family. The nature of the inheritance, the presence of children, and the community activity are factors being able to bring to a matrimonial regime change or to modify it. A heritage or a donation can also intervene and modify the way of seeing the future. Lastly, one wants to protect the alive last in the event of death, to reduce the expenses and the preoccupations with a succession.
This procedure is possible if the couple has been married for at least 2 years or if 2 years were passed since a preceding regime change (Article 1397 of the Civil code).
There are certain conditions to respect:
- one needs the assent of the spouses,
- the absence of fraud aiming at attacking the rights of the thirds,
- conformity with the interests of the family.
The spouses wishing a regime change will have as interlocutor a notary who will undertake to notify this change with the heirs and the possible creditors. All these informed people have a 3 months deadline to be opposed to the modification.
The regime change will have to be approved by the judge in the event of presence of minors of one or the other of the spouses and in the event of opposition of the major children or the creditors.
The regime change can represent high costs, mainly according to the value of the goods had by the spouses.
As of now, Share your experiments and respond through the Forum
|
