Which matrimonial regime should you choose when you get married?
Are you planning to get married? Are you unsure of which matrimonial regime to choose based on your situation? What are the differences between the community regime, the reduced community of acquests, the participation in acquests and the separation of property? The choice of matrimonial regime is essential because it will determine whether your property is owned jointly by you and your future spouse or whether it is your own property?
Everything you need to know about the different matrimonial regimes
The primary regime: a standard minimum regime that applies to all matrimonial regimes
The primary regime is the regime that applies to all matrimonial regimes; it is the minimum regime from which you cannot derogate. This primary regime involves several things that regulate your married life:
1. The obligation to contribute to the expenses of the marriage
The spouses contribute to the expenses of the marriage according to their respective means. The expenses of the marriage include all the expenses incurred by the household’s lifestyle (food, housing, entertainment, etc.).
In your marriage contract, you can modify this rule by determining which spouse will be responsible for certain expenses.
However, you cannot specify that the spouse will not contribute to any of the expenses; it is an obligation to contribute at the very least according to one’s resources.
2. Co-management of the family home
All decisions concerning the family home (sale, termination of a lease, rental) must be made with the agreement of both spouses.
3. Solidarity of household debts
All expenses incurred by you and your spouse for the maintenance of the household or the education of the children are jointly and severally binding on both spouses. Thus, your creditors can claim the totality of the payment of the debts from you or your spouse.
Solidarity is however excluded in two cases:
- For manifestly excessive expenses: to appreciate the excessive character, it is necessary to refer to your lifestyle, to the utility of the operation or to the good or bad faith of the third party contracting;
- if you did not give your consent to the loan.
4. Each spouse can sign contracts related to the household or the education of the children alone
Each spouse has the power to enter into contracts for the maintenance of the household or the education of the children alone. If you can enter into a contract alone, all debts incurred by you will be jointly and severally binding on your spouse.
5. Each spouse has the sole authority to open and operate a bank account
You can therefore freely open and use a bank account without your spouse’s consent.
6. Each spouse has the power to manage their own personal property alone
You can freely sell, rent or lend your personal property, i.e. property that belongs to you. So no matter which matrimonial regime you choose, you will be bound by this primary regime which applies to all matrimonial regimes.
The regime of the legal community reduced to acquests
The regime of community of acquests is the regime applicable in the absence of a marriage contract. Therefore, you do not need to conclude a marriage contract before a notary.
In the regime of the legal community it is necessary to identify 3 estates:
- Your own estate (your own property);
- your spouse’s own estate (their own property);
- the estate owned jointly by you and your spouse (the joint estate).
Common property: property belonging to you and your spouse
During your life together, several assets will fall into the common property, that is to say that these assets will belong to both of you:
- The acquests of the community
A property is qualified as an acquest when it was acquired for a fee during the marriage. Thus, if you buy an asset with your personal money during your marriage, this asset will be owned by you and your spouse.
If the property is purchased with your own funds, it is possible to use a clause of reinvestment at the time of the purchase, so that the property does not fall into the common estate but remains in your personal patrimony.
What about property acquired by donation or inheritance? Property acquired during the marriage by inheritance, donation or bequest remains your own property and does not become part of the joint estate.
- Earnings and salaries
Your earnings and salaries acquired during the marriage are joint property. So if you deposit your salary in a bank account that belongs to you, the salary is saved and belongs to you and your spouse.
- Income from own property
Income from your own property is joint property. For example, if you own a building that you rent, your building continues to belong to you but the rent is common property that also belongs to your spouse.
Own property: property belonging to you personally
The joint estate does not absorb all the property, so you remain the owner of some property, including :
- Present property (property acquired before marriage)
You remain the sole owner of the property you owned before your marriage.
- Property acquired free of charge during the marriage
If you receive property by inheritance, donation or bequest, it will belong to you alone, and your spouse will not be the co-owner of this property.
- Property that belongs to you by nature
This is property that is closely related to your life and your person.
Thus, you are the sole owner of your clothes, your linen, the indemnities resulting from a bodily or moral injury, the working tools necessary to your profession.
- Mixed property (company shares and civil clientele)
These are essentially shares in a company.
If you have acquired shares during your marriage, they do not fall into the community (you remain the sole owner of the title), however the asset value of the property (the finance) falls into the community. Therefore, in case of separation, you will have to pay your spouse half of the value of the shares.
Your own debts are those you have before the marriage or those you receive by inheritance.
Your personal creditors can pursue payment of your debts from your own property but also from your income (earnings and wages).
Debts that arose during your marriage (other than your own property) are part of your joint liabilities.
Thus, your joint creditors can pursue payment of debts against your joint property, except in the case of fraud by the indebted spouse and the bad faith of the creditor.
For alimony debts, the debtor spouse commits their own property and the property of both spouses, with the exception of their spouse’s earnings and wages. Alimony debts are joint debts.
At the time of your separation, the matrimonial regime will be liquidated and the community will be divided equally.
The regime of universal community
You must conclude a marriage contract with a notary. Once again, it is necessary to distinguish between 3 estates, the 2 own estates and the common estate (the community). The principle in the community is that all the goods are common goods such as:
- Property acquired by each spouse before and during the marriage
- Property received by each spouse by donation or inheritance before and during the marriage
- Debts contracted by each spouse before and during the marriage.
However, there is still property that is private property:
- Property of a personal nature such as your clothes, your work tools, your compensation for moral prejudice.
You can stipulate in your marriage contract that certain property remains your own.
The regime of participation in acquests
You must sign a marriage contract with a notary. This system differs depending on whether you are married or not.
During the marriage, the regime is a regime of separation of property and after the marriage, the regime will function as a regime of community of acquests.
During the marriage
During the marriage, there is no common property, only your own property, so the following property belongs to you during the marriage
- Property that you acquired before and during the marriage;
- property you received by donation or inheritance before and during the marriage
- debts you incurred before and during the marriage.
Thus, during the marriage, you can dispose of your property alone as you see fit.
However, there must be a joint decision concerning the fate of the family home (rental, sale, etc.).
After the marriage
When you separate, you will have to liquidate the matrimonial regime. The community aspect of the regime of participation in acquests will take effect at this time, even though you lived in separation of property during your marriage.
In practice, the assets of each spouse will be compared and the spouse who has become the least wealthy during the marriage will receive a “participation claim” from their former spouse.
The dissolution of the regime of participation in acquests gives you the right to benefit from the acquests (assets acquired during the marriage) made by your spouse.
You will therefore have to calculate the amount of the participation claim to which you are entitled and to which your spouse is entitled.
Your original assets (before the marriage) and your final assets (on the day of your separation) will be calculated through a substraction. The result will represent the amount of the acquests. Your spouse is entitled to half of the acquests, unless otherwise provided for in the marriage contract.
The same will be done for your spouse, and you will be entitled to half of their acquests. The one who owes the most to their spouse, will pay the difference to them, which corresponds to the debt of participation.
The regime of separation of property
You must conclude a marriage contract with a notary. There are only two types of estate, your own estate and your spouse’s estate.
Thus the following assets are your own and will remain your own during the separation:
- Property acquired by you before and during the marriage;
- property you received by donation or inheritance before and during the marriage;
- debts you incurred before and during the marriage.
If you buy property jointly, there will be joint possession, there is never community in a regime of separation of property. The management of this common property will follow the rules of joint possession.
When you separate, each spouse takes back their own property and the undivided property is shared between the two of you.
Are you planning to get married? Do you intend to draw up a marriage contract? Do you want to protect part of your assets before your marriage? Do you want specific information about the consequences of your marriage? Contact an AGN network lawyer in your area who will advise you and assist you with your marriage.