Marriage Contract and prenuptial agreement in French law
Alexandre BOICHE
1 – Rules that determine the recognition of foreign pre-nuptial agreements /marriage
contracts
France has ratified the Hague Convention dated March 14, 1978 on laws applicable to
matrimonial regime (attached).
The Convention has only been ratified by Netherlands, Luxembourg and France, but it is
universal and contains the rules of conflict of law that are applicable in France to this matter.
The convention became applicable on the 1st of September 1992 and is therefore applicable to
all couples married after this date.
For spouses married before the 1st of September 1992, the French rules of conflict of law are
applicable. These rules are based on the principle of freedom of choice of the applicable law
to the matrimonial regime. Spouses are free to choose the law they want without limitation.
For example, a French American couple married in Cape Town could decide to make a
matrimonial contract based on Canadian law.
If no contract has been drawn, the applicable law will be that with the strongest connection to
the case. However, the case law of the Cour de cassation establishes a strong presumption in
favor of the law of the first domicile of the spouses after the marriage.
In the Hague Convention, the principle remains freedom of choice, but the choice is limited to
the laws designated in article 3.
Without choice, the applicable law is that of the first habitual residence of the spouse after the
marriage. The spouses are also free to change the applicable law to their matrimonial regime
at any time during the marriage.
I had a case in which a French man married an English woman without a contract; they
established their first habitual residence in Vietnam, where the matrimonial regime is the
universal community. They then decided to make a contract and to choose the French
matrimonial regime of community of assets. They afterwards decided to again make changes
and opted for the English law and the matrimonial regime of separation of property then.........
they got divorced.
Therefore, the French court would have to apply the foreign law designated by the spouses in
their marriage contract. For example, I recently had to apply the law of Washington State to
share matrimonial properties.
An additional problem for international couples who have not signed a marriage contract is
that they may not be aware of the applicable law of their matrimonial regime until a divorce
proceeding is filed.
This problem is reinforced with the Hague Convention, where there are rules of automatic
change of the applicable law to the matrimonial regime for the spouses married without a
contract.
For example, a French couple is married without a contract in New York, where they
established their first habitual residence. They then moved to Denmark, where they lived for
12 years before moving to France, where they lived for 5 years until the husband filed for
divorce.
If we follow the rules of the Hague Convention, the law of New York is applicable to their
matrimonial property. However, after 10 years of habitual residence in one state they are
automatically submitted to the law of this country. Therefore, in this case, the couple would
be submitted to the law of Denmark after having lived there for 10 years. The law of Denmark
is universal community, but as both of them are French and they moved to France, the French
law is automatically applicable to their assets.
This is the reason for which I believe a marriage contract is absolutely necessary for
international couples to give them a level of predictability and to ensure it. A prenuptial
agreement is the better solution in my opinion.
2 - Marriage contract and prenuptial agreement:
In French law, the spouses have the ability to sign a marriage contract prior to or during the
marriage.
French marriage contracts deal with the consequences or non consequences of the marriage
regarding the properties that the couple acquired before or during the marriage. This is the
reason why in French law we use the expression “matrimonial regime;” the word "regime"
means “rule” in the French language. A matrimonial regime is a body of rules regarding the
affect of the marriage on the administration, the enjoyment, and the disposal of property by
the spouses during the marriage.
In French law, the choice of the matrimonial regime is made in a marriage contract. The sole
objective of a marriage contract is to determine the matrimonial regime chosen by the couple.
Title IV bis of the French civil code is entitled "Of marriage contract and matrimonial
regime". Therefore, in French legal language, “marriage contract” and “matrimonial regime”
may be spoken of as the same principle. The first necessarily refers to the second.
There are three main types of matrimonial regime defined in the French Civil Code:
community regime, regime of separation in acquisitions, and separation of the assets.
However, the couple is free to agree upon another type of contract. For example, they could
choose a community contract and decide that this community will be divided unequally.
A marriage contract is normally drawn and signed before a notary in France. A notary is a
jurist for patrimonial matters and a public officer. A notary is normally neutral. Therefore,
only one notary needs to establish the marriage contract as opposed to each spouse being
represented by his or her own notary. I often have foreign clients who have been married in
France without being able to speak French and the French spouse has made him/her sign a
marriage contract before the marriage. The contract had not been translated and its content not
explained to the foreign spouse. Unfortunately, when the divorce begins, it is too late to file
an application to cancel the marriage contract or to seek the liability of the notary.
A marriage contract in French law is only related to the couple’s properties. It does not
normally contain any stipulation about the amount of maintenance in the case of a divorce or
separation.
Since the 18th of June 2011, the Maintenance Regulation dated December 18, 2008, which
concerns jurisdiction, applicable law, recognition and enforcement of orders and cooperation
in maintenance matters, is enforced in France and in Europe.
This regulation is universally applicable. It gives to the spouse the possibility of electing the
jurisdiction that will deal with his/her maintenance obligation. The designation can be made
before the marriage in a prenuptial agreement or during the marriage.
In regards to applicable law, this regulation refers to the Hague protocol dated the 23rd of
November 2007, which gives to the spouses the possibility of electing matrimonial law.
In an international case, I am very reluctant to advise the parties to sign more than one
prenuptial agreement, because if the French courts have to hear the case, they would not take
into account the French prenuptial agreement but rather the more recent one. The Hague
Convention allows the couple to sign a specific contract to designate the law of a country in
which they have some permanence, for these properties and the ones they may acquire.
This is the sole situation in which the Hague Convention gives to the spouse the opportunity
to sign more than one contract and to designate more than one applicable law.
Alexandre BOICHE
CBBC
8, boulevard Sébastopol -75005 PARIS
Tél. 33 1 55 42 55 25 Fax 33 1 55 42 55 29
Email : a.boiche@cbbc-avocats.com