FRANCE Law and Practice Contributed by: Elodie Mulon, Emmanuelle Bonboire-Barthélémy and Louise Astruc Baciotti, Chauveau Mulon & Associés
2.3 Division of Assets Matrimonial Regimes Choice of matrimonial regime at the time of marriage Spouses have the freedom to choose their mat - rimonial regime. The liquidation rules for these different matrimonial regimes are determined by the Civil Code, and the court does not have the capacity to regulate or reallocate assets or resources on divorce. Application of the legal regime does not pre - clude a prior contract, except to include specific adjustments. However, to establish a contrac - tual regime, spouses must draw up a marriage contract (see 2.5 Prenuptial and Postnuptial Agreements ). The choice of matrimonial regime does not affect the effects of spousal separation regarding sup - port obligations (alimony and compensatory allowances). The legal matrimonial regime Spouses may opt not to make an explicit choice and will then be subject to the legal regime of community property ( communauté réduite aux acquêt s) (Article 1400 to 1491 of the Civil Code). This regime comprises the following asset cat - egories. • Common or acquired property, which includes assets acquired by the spouses separately or together during the marriage, including their incomes and the profits from their separate assets (Article 1401 of the Civil Code). Any property acquired during the marriage is deemed to be common property (Article 1402 of the Civil Code). • Each spouse’s separate assets, including assets received through inheritance or gift during the marriage.
Upon the liquidation of the regime, claims ( récompense ) can be calculated. • The community owes compensation to a spouse whenever it benefited from a separate property (Article 1433 of the Civil Code). • The community is entitled to compensation whenever an expenditure was made by it for the personal benefit of a spouse (Article 1437 of the Civil Code). The assessment modalities are determined by the Civil Code. Conventional matrimonial regimes Spouses can also choose one of the standard regimes organised by the law: • separation of assets ( séparation de biens ) (Articles 1536 to 1543 of the Civil Code); • participation in acquisitions ( participation aux acquêts ) (Articles 1569 to 1581 of the Civil Code); or • conventional communities ( communautés conventionnelles ) (Articles 1497 to 1526 of the Civil Code). Moreover, spouses can modify certain rules of existing regimes. In communal regimes, they can establish “matrimonial advantages” ( avantages matrimoniaux ) to alter: • the consistency of the common mass – eg, a provision to convert separate property into common property ( clause d’ameublissement ), a clause to exclude a property or a category of property from the community ( clause de stipulation de propre ); • rules regarding compensations in principle or their evaluation; and • asset distribution upon death to favour the survivor – eg, a clause allowing the surviv -
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