3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Art. 1387 CC sets out the principle of the freedom of spouses with regard to the arrangement of their marital relations. The spouses may opt for conventional community (Art. 1497 et seqq. CC) ; universal community, whereby all assets and debts are pooled (Art. 1526 CC) ; separation of property, whereby there is no community property (1536 et seqq. CC) ; participation in acquisitions, whereby there is no community property but where each spouse, in the event of divorce or death, is entitled to receive monetary compensation where he/she has accumulated less wealth than the other spouse during the marriage (1569 et seqq. CC).
The spouses may never exclude the application of the "primary" regime, which applies solely on account of the marriage (Art. 212 et seqq. CC).
Since 1 May 2013, mixed Franco-German couples and, more broadly, any couple living in France or Germany or subject to the French or German matrimonial property regime, have been able to opt for the new optional Franco-German matrimonial property regime. This regime is largely based on the participation in acquisitions regime (separatist regime throughout the duration of the marriage and, upon its dissolution, each spouse is entitled to half of the assets acquired during the marriage).
3.2. What are the formal requirements and who should I contact?
The marriage contract must be drawn up by a notary (Art. 1394 CC). The marriage certificate must indicate whether a contract has been entered into and the name and address of the witnessing notary (Art. 76 CC). Failing this, the spouses are deemed with regard to third parties to be married under the regime of statutory community.
3.3. When may the contract be concluded and when does it come into effect?
The marriage contract must be concluded prior to the celebration of the marriage and shall take effect on the day of the marriage (Art. 1395 CC).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The contract may be amended prior to the marriage subject to the same formalities as for its conclusion (Art. 1396 CC) (see question 3.2) After the matrimonial property regime has been in force for two years, the spouses may decide to change said regime by way of notarial authentic instrument (art. 1397 CC). The creditors and adult children of each spouse may oppose such an amendment. In the event of opposition, or where one of the spouses has children who are minors, the act must be ratified by the courts.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
