The question of matrimonial regime is complicated enough under normal circumstances, but takes on even greater significance in an international context when it concerns a mixed couple living abroad.
The status of each partner is different
Today, couples can choose between three types of union which are recognised by the law and each with different provisions: living together, civil partnership and marriage.
De Facto Union (living together)
If one of the partners acquires property, this does not confer any rights to the said property on the other partner. In the event the partners acquire the property together, they are considered as individual owners of half of said property, unless the deed of sale provides for each partner to own a different share.
What is known in France as a Pacte Civil de Solidarité or “Pacs”, (a civil partnership)
Partners in a “Pacs” acquire property jointly, even if they are under the separation of property regime (they have the choice of opting for the undivided co-ownership regime, either under their initial agreement or under a modifying agreement). From the moment the Pacs is registered, half of the property thus acquired, together or separately, belongs to each partner, as explained by the government on the Public Service website.
By default, common assets acquired during the marriage are divided into two equal parts if the marriage comes to an end (that is the joint property regime). But married couples can choose another matrimonial regime by entering into a prenuptial agreement.
How should you define the prenuptial agreement?
Bearing in mind the diversity of matrimonial regimes that exist in the world, it would be best to establish a prenuptial agreement in an international context. There are three types of prenuptial agreement:
Comprehensive community of property: covering almost all property acquired before and after marriage;
Separate ownership of property regime: each partner retains property acquired before and after marriage, independently of the other;
Communal estate comprising only property acquired after marriage: property acquired after marriage using joint funds, belongs to both partners, but property acquired before marriage remains the property of the partner who acquired it.
There are several ways for mixed couples living abroad to establish a prenuptial agreement: via a local notary, via a notary in France, or with the help of French consular services (usually housed in the French Embassy).
Why is the situation of a mixed couple different?
In the absence of prenuptial agreement, expat status can have consequences for matrimonial regimes. Things get even more complicated in the case of an international marriage, i.e. one where the marriage took place abroad or where one partner has a different nationality. Entering into an international prenuptial agreement is very highly recommended, in order to agree upon the law and matrimonial regime to which the couple will be subject. And that is because they have the choice of legislation to which they will be subject. The “Notaires de France” website gives very precise definitions:
The law of a state of which one of the partners in the marriage has the nationality at the time of acquiring marital status;
The law of a state on the territory of which one of the partners in marriage has habitual residence at the time of acquiring marital status;
The law of the first state on the territory of which one of the partners in marriage establishes a new habitual residence after the marriage;
The partners in marriage can also designate, as far as the properties are concerned, or certain of the properties, the law of the place in which the properties are located.
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