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Changing your matrimonial regime when you have minor children

Do you want to change your matrimonial regime? Do you have minors in your care? What are the steps to take?  The procedure for changing a matrimonial regime was modified by the Loi de programmation 2018-2022 et de réforme pour la justice, which went into effect on March 25, 2019.

Change of matrimonial regime in the presence of minor children: an optional referral to the judge since March 25, 2019

The modification of the procedure for changing matrimonial regimes

Article 8 of the Loi de programmation 2018-2022 et de réforme pour la justice overhauls the provisions of Article 1397 of the Civil Code relating to the change of matrimonial regime. Three points have been mainly modified.

1. Removal of the condition

The first point concerns the suppression of the condition relating to the two-year waiting period to change the matrimonial regime as from the marriage. Thus, spouses may adjust or change their matrimonial regime at any time during their union.

2. Judicial probate

The second one concerns the judicial probate which was previously mandatory in the presence of a minor child. From now on, this referral to the Judge is no longer a condition for the validity of the change of matrimonial property regime. It only becomes optional. In practice, this option to refer the matter to the Judge is granted to the notary in charge of the operation. If the notary identifies a risk to the minor’s patrimonial interests, they may refer the matter to the guardianship judge and the change of matrimonial regime will be subject to their authorization.

3. The duty to inform the representatives

The third aims to extend the duty to inform the representative of a minor child under guardianship or a protected child of full age in case of a change in the matrimonial regime of their parents. This obligation thus allows them to oppose this change, within a period of three months, and they can now do so without obtaining prior authorization from the family council or the guardianship judge.

The consequences of this change

The new wording of article 1397 of the Civil Code is therefore intended to apply to changes in the matrimonial regime. As a result, the family courts seized of the matter are obliged to render decisions of non-approval for all cases referred to them on the day the new law comes into force.

It seems that the legislator wished to make judicial probate an exception reserved for cases in which the notary would detect a risk of infringement of the minor’s patrimonial rights.

Indeed, whereas the judge had to check whether the change of matrimonial regime was in conformity with the “interests of the family” by carrying out an overall assessment, the notary must now check the consequences of this change and may therefore refer the matter to the guardianship judge if it is found that there is “any act or omission which could manifestly or substantially compromise the minor’s patrimonial interests, or the presence of a situation which could be seriously prejudicial to these interests” (article 387-3, paragraph 2, of the Civil Code).

Thus, it appears that the responsibility of the notary has increased with these new provisions, especially when there is only a risk that the project of their clients will compromise the patrimonial interests of the minor child.

If the referral to the Judge is no longer automatic and compulsory, it will nonetheless become unavoidable in order to ensure that the clients receive optimum security for the planned transaction.

The effectiveness of this reform will therefore be analyzed in the light of the practices implemented in notarial offices over the coming months.

Do you want to change your matrimonial regime? Would you like to know what impact this change will have on your household?

Contact an AGN lawyer in your area, who will advise you, optimize your financial situation and assist you in your change with the help of the AGN Avocats notary network.

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