The French winding up of matrimonial property regime falls under family law and is therefore primarily addressed in the French Civil Code (FCC) and French Code of Civil Procedure (FCCP). Matters of divorce and seperation of assets are overseen a Family Judge (Juge aux affaires familiales).
In cases of divorce via the Court in France, the Family Judge not only approves the divorce itself but also instructs a notary (notaire) to handle the fair distribution of the assets owned by the spouses. This process is known as the winding-up of matrimonial property rights. If the spouses cannot reach an agreement regarding this distribution and there is ongoing disagreement, they have the option to request the Family Judge to intervene and oversee a judicial winding-up.
Litigation over possession of property in divorce arises from a common marriage contract clause. Many marriage contracts in France include clauses stipulating that each spouses shall contribute to the expenses of the marriage in proportion to their respective means. It is the Court of Cassation's view that family dwellings (including primary and secondary residences) are considered expenses of the marriage.
As it is typically the largest financial commitment for a family, the financing of a property can result in one spouse contributing above their means. It is then for the courts to examine the marital contract and determine whether a spouse that has over-contributed to the martial expenses through financing of the property has recourse against the other spouse.
In the French property separation system, assets obtained, received or inherited by a spouse during marriage stay under their name. If one spouse helped purchase or increase the value of an asset belonging to the other spouse, they are entitled to financial compensation. This system is commonly advised when there is an international prenuptial agreement, as it closely resembles the English system and is recognisable in other countries.
French law has a history of acknowledging international prenuptial (and postnuptial) agreements detailing marital property rights in a divorce. Similarly, French marriage contracts are commonly acknowledged in other civil law nations. In common law countries, the courts consider these agreements in their decision-making process.
Unless there is a specific agreement stating otherwise, the financial contribution towards marriage expenses is typically based on the proportional means of each spouse. This means that both the income and expenses of each spouse are considered when determining their respective contribution.
While marriage contracts may include a provision assuming that each spouse covers their daily expenses, they do not prevent either spouse from pursuing legal action to ensure the other fulfills their obligation to contribute to future expenses.
Furthermore, a clause in a marital contract cannot require a spouses to contribute all of their income to contributions nor can it relieve them of their obligations. It may, however,be beneficial for marital contracts to define the scope of marital expenses.
If you need legal assistance with separetaion of assets in france our team of French family lawyers can help you. Our expertise spans all areas of family law including separation of assets after divorce and sucession as well as French property and tax law so you can rely on us to deliver a professional legal services which takes a holistic view of your assets and goals.
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