FRANCE Law and Practice Contributed by: Elodie Mulon, Jennifer Tervil, Romane Lemaitre and Emmanuelle Bonboire-Barthélémy, Chauveau Mulon & Associés
Recognition and Conditions of Validity of Marriage Agreements Marriage agreements, whether prenuptial or post - nuptial, are recognised under French law, subject to certain conditions. • Choice of applicable law: spouses may choose the law applicable to their matrimonial regime, pro - vided that this law has a direct link to their situation (eg, nationality or habitual residence) and that it is not contrary to French public policy (eg, a foreign contract that does not provide for alimony in the event of divorce could be set aside by a French judge). • Form and content: marriage contracts must com - ply with formal requirements, such as the authen - tic form (notarised deed) under French law. If the contract was drawn up abroad, a notarised deed is not required. However, it must comply with the formal requirements of the country in which it was drawn up. • Determining the law applicable to the matrimonial regime in an international context: since 29 Janu - ary 2019, Regulation (EU) No 2016/1103 has more strictly regulated the freedom of spouses to choose the applicable law, limiting this freedom to laws that have a direct link to their situation. 2.5 Transfer of Property Under French law, the transfer of ownership always incurs a cost. Sale of Property During Lifetime • Sell real estate: if the fees and taxes are payable by the buyer, the seller, if it is not their primary resi - dence (which is fully exempt), will have to pay capi - tal gains tax, the basis for which varies depending on the number of years the property has been owned. • Sell securities: the basis for calculating French and foreign securities admitted to trading on a regu - lated market is determined by their average price on the day of transfer.
(b) offers a practical tool to bypass forced heirship in a limited, lawful way. 2.4 Marital Property Under French law, the matrimonial regime determines the rules applicable to the management and distri - bution of the spouses’ property during the marriage and in the event of its dissolution. The issue concerns the classification of marital property, the conditions under which a spouse may dispose of joint property, and the recognition and validity of marriage agree - ments (prenuptial and postnuptial). In the context of an estate, the liquidation of the matrimonial regime will always precede the liquidation of the estate itself. Only the deceased’s share will be included in the estate’s assets. The Default Matrimonial Regime and Available Alternatives In the absence of a marriage contract, the default matrimonial regime under French law is that of com - munity property reduced to acquisitions, as defined by the Civil Code and the laws in force. This regime implies that assets acquired by the spouses during the marriage ( acquêts ) are considered joint property, while assets owned before the marriage or received by gift or inheritance remain separate property. However, the spouses may opt for another matrimo - nial regime by drawing up a marriage contract, such as the regime of separate property or the regime of participation in acquisitions. Rules Relating to the Management and Disposal of Matrimonial Property Under the community property regime, joint property is subject to specific management rules each spouse may administer the joint property alone, except for significant acts of disposal, such as sale or donation, which require the consent of the other spouse. Acts of disposal carried out without the consent of the spouse may be annulled if they are considered fraudu - lent. For example, a transfer subject to a life annuity or at a loss is presumed to be fraudulent if it is carried out without the consent of the spouse.
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