Married couples and civil partners: which property regime applies?

Why your property regime matters

Before a notary can settle an estate, the matrimonial property regime has to be “liquidated”: the notary works out what belongs to the surviving spouse and what belongs to the person who died. Under a community regime, for example, half of the community assets already belong to the survivor and do not form part of the estate at all. The regime therefore affects who inherits, how much tax is paid and what the children can claim.

Three periods, three sets of rules

Date of marriage	Rules applied in France	Law applying if there is no contract or choice
Before 1 September 1992	French case law	The law the couple is presumed to have chosen, mainly that of their first matrimonial home
1 September 1992 to 28 January 2019	Hague Convention of 14 March 1978	Generally the law of the first habitual residence after marriage; an automatic change is possible (Art. 7)
From 29 January 2019	EU Regulation 2016/1103	The first common habitual residence after marriage, then common nationality, then closest connection; no automatic change (a court may exceptionally apply the law of a later common habitual residence, Art. 26(3))

Couples married before 29 January 2019 who choose the applicable law on or after that date come under the Regulation for that choice.

Automatic change under the Hague Convention

The Hague Convention is in force in France, Luxembourg and the Netherlands. Where spouses have neither made a marriage contract nor chosen a law, Article 7 replaces the original law with the law of the State where both now live habitually:

1. when they settle in the State of their common nationality;
2. once they have lived in that State for ten years after the marriage;
3. when they settle there and the original law applied only because they had no first common residence.

The change applies only to the future. Assets acquired before it remain under the earlier law.

Example: a British couple married in London in 2000, lived there and moved to Bordeaux in 2010, with no marriage contract. Their regime started under English law (separate property). From 2020, after ten years in France, French law applies, and the French default community covers assets acquired from then on. A Bordeaux house bought in 2021 may therefore be community property, even if only one spouse’s name is on the deed.

How England & Wales and the USA approach it

• England and Wales have no matrimonial property regime. Each spouse owns what is in their name. On divorce, the courts have wide discretion to divide assets fairly. French notaries generally treat a couple governed by English law as having separate property. An English court dealing with a divorce will normally apply English law, whatever the French position.
• The USA has no federal rule. Most states have separate property during the marriage, with “equitable distribution” on divorce. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) have community property; a few others, such as Alaska and Tennessee, allow couples to opt in. A couple who first lived in California may therefore be under a community regime.

Comparison: France, England & Wales, USA

Issue	France	England & Wales	USA (general position; state law varies)
Default regime	Community of acquests (communauté réduite aux acquêts): assets acquired during the marriage are shared	None: each spouse owns separately	Separate property in most states; community property in nine
Marriage contract	Notarial contract before the marriage, binding	Prenuptial agreements are taken into account by the courts but are not automatically binding	Generally enforceable, subject to state-law conditions
Change during the marriage	Notarial deed (Civil Code, Art. 1397)	No regime to change; agreements possible	Post-nuptial agreements, depending on the state
Registered partners	PACS: separate property by default	Civil partners treated much like spouses	Varies by state

Other EU countries

Many foreign owners in France come from elsewhere in the EU. According to the official notaries’ site, the default regimes are:

Country	Default matrimonial regime
Belgium	Community limited to property acquired during the marriage
Netherlands	Limited community of property for marriages from 1 January 2018; full community for earlier marriages
Germany	Community of accrued gains (Zugewinngemeinschaft): separate ownership, with the gains made during the marriage shared when it ends
Spain	Community of acquisitions (sociedad de gananciales) under the Civil Code; separate property in Catalonia and the Balearic Islands, and specific regional regimes in Aragon, Navarre and the Basque Country

Changing or choosing your regime in France

Under Article 1397 of the Civil Code, spouses can modify or entirely change their regime by notarial deed, in the interest of the family.

• The deed must include a liquidation of the previous regime where necessary.
• Adult children and any parties to the earlier marriage contract are informed personally and have three months to object. Creditors are informed by a public notice and also have three months.
• Court approval is required only if someone objects (or in certain protection situations).
• Since the 2019 reform, you no longer have to wait two years after the marriage or a previous change.

International couples can also choose the law that governs their regime: under Article 22 of Regulation 2016/1103, the law of the habitual residence or nationality of either spouse. Many couples do both at the same time, for example by choosing French law and adopting a French regime.

The “clause d’attribution intégrale”

Under Article 1524 of the Civil Code, a community contract can provide that the whole community passes to the surviving spouse. Combined with a universal community, this means that on the first death the survivor keeps everything under the marriage contract rather than through the estate. It is a powerful way to protect a spouse, but:

• children who are not the children of both spouses can claim back the excess benefit (Article 1527, the “action en retranchement”);
• the children inherit nothing on the first death and lose the use of their tax allowances, which can increase tax on the second death;
• it may not be recognised in the same way in the UK or the US.

PACS and foreign civil partnerships

• PACS: by default, each partner keeps their own property. Assets that neither can prove are theirs are held in equal undivided shares (Civil Code, Art. 515-5). PACS partners do not inherit from each other by law, so a will is essential. If one is made, the survivor is exempt from inheritance tax.
• Foreign registered partnerships (for example a UK civil partnership): under Article 515-7-1 of the Civil Code, their formation and effects are governed by the law of the State where they were registered. EU Regulation 2016/1104 covers the property consequences of partnerships registered, or for which a law is chosen, from 29 January 2019.
• Unmarried couples have no regime at all and pay 60% inheritance tax on anything left to each other, after a small allowance of 1,594 euros. Buying jointly with a survivorship (tontine) clause or entering a PACS can help.

Sources

Civil Code, Art. 1397, Art. 1524, Art. 1527, Art. 515-5 and Art. 515-7-1; General Tax Code, Art. 796-0 bis and Art. 777; Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes (text, status); Council Regulation (EU) 2016/1103 (EUR-Lex), Arts. 22, 26 and 69; Council Regulation (EU) 2016/1104; Notaries of Europe, Couples in Europe (coupleseurope.eu): Belgium, Netherlands, Germany, Spain.

This guide is general information and does not constitute legal advice. Contact the office for advice on your situation.

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