In France, every marriage is subject to a matrimonial property regime – either automatically, under the default legal regime, or contractually, through a formal marriage contract.

The concept of a matrimonial property regime, although well-established in French civil law, does not exist as such in all legal systems. It governs how assets are managed during the marriage and how they are distributed between spouses upon divorce or death.

Where international elements are present – such as differing nationalities or places of residence – the first step is to determine which law governs the matrimonial property regime. French private international law does allow for a foreign law to apply to the couple’s property regime, a distinctive feature compared to jurisdictions that systematically apply their own domestic law, regardless of the couple’s intentions or background.

In the absence of a marriage contract, the conflict-of-law rules applicable to matrimonial property regimes vary depending on the date of the marriage. The following provides a chronological overview of the legal instruments and principles used in France to determine the applicable law, and what happens when French law is found to apply.

Since the entry into force of Council Regulation (EU) 2016/1103 on 29 January 2019, participating EU Member States (including France) have applied a harmonised set of conflict-of-law rules to determine the law applicable to matrimonial property regimes. These rules apply to marriages contracted on or after that date.

In the absence of a marriage contract and choice of law, the applicable law is determined by objective criteria set out in Article 26:

1. The law of the spouses’ first common habitual residence after marriage;
2. If none, the law of their common nationality at the time of marriage;
3. If neither applies, the law of the State with which the spouses jointly have the closest connection at the time of marriage.

Between 1 September 1992 and 28 January 2019:
The Hague Convention of 14 March 1978 (in force in France since 1992) governs the law applicable to matrimonial property regimes.

In the absence of a choice of law, the applicable law is:

• That of the first common habitual residence after marriage; or failing that,
• The law of their common nationality under conditions, or
• The law of the State with which they have the closest connection (Article 4).

Notably, under Article 7, the applicable law may change over the course of the marriage:

• After 10 years of residence in another State, or
• Upon relocating to a State of the spouses’ common nationality.

As a result, spouses may be subject to more than one matrimonial property regime over time.

Before 1 September 1992:
In the absence of applicable international instruments, French case law governs.
Courts identify the applicable law based on an implied choice, generally deduced from the spouses’ first effective domicile after marriage. This may be reinforced by other indicators, such as the location of the first immovable property acquired or the conduct of matrimonial affairs.

These chronological distinctions remain highly relevant in practice, as many international couples today continue to rely on these earlier frameworks.

If the conflict-of-law rules designate French law, the matrimonial regime is governed by the French Civil Code. French courts have no discretionary power to redistribute assets upon divorce, the regime applies strictly.

If the spouses did not make an express choice of law in a marriage contract, they are subject to the default regime of community of acquests (communauté réduite aux acquêts) (Articles 1400–1491 of the Civil Code).

This regime comprises two main asset categories:

• Common assets, including assets acquired by the spouses during the marriage, as well as income and proceeds from separate property. Any asset acquired during the marriage is presumed to be common property.
• Separate assets, comprising assets owned prior to the marriage or received during the marriage through inheritance or gift.

Upon dissolution of the regime, claims for compensation (récompenses) may arise:

• The community owes compensation to a spouse when it has benefited from their separate property;
• Conversely, a spouse owes compensation to the community when they have personally benefited from a common asset.

Spouses may also enter into a marriage contract, allowing them to choose both the applicable law and the matrimonial property regime permitted under that law. We will explore this subject in more detail in upcoming editions of our newsletter.