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What is the mandatory primary matrimonial regime?
The mandatory primary matrimonial regime is the body of rules that establishes the minimum rights and obligations of spouses. These rules apply whether the spouses have entered a marriage contract (Articles 212 et seq. of the French Civil Code).
Is it possible to exclude the application of the mandatory primary matrimonial regime?
No. Article 226 of the French Civil Code provides that the rules of the mandatory primary matrimonial regime apply “by the sole effect of marriage, irrespective of the spouses’ matrimonial property regime”, whether they are married under a community property regime or a separation of property regime.
Nevertheless, this article specifies that these rules apply in the absence of a “matrimonial agreement”, i.e. a marriage contract. It is therefore possible to make certain arrangements regarding these rules, but not to exclude their application altogether. Accordingly, it has been held that a marriage contract cannot release spouses from their obligation to contribute to the expenses of the marriage (see French Court of cassation, First Civil Chamber, 13 May 2020, No. 19-11.444 P).
What are the rules of the mandatory primary matrimonial regime?
Rules governing spouses’ rights and duties towards each other
Marriage imposes duties on each spouse
From the moment the marriage is solemnised, spouses owe each other “respect, fidelity, support and assistance” (Article 212 of the French Civil Code). Together, they must ensure “the moral and material direction of the family”, provide for their children’s education and prepare for their future (Article 213 of the French Civil Code). They must also “contribute to the expenses of the marriage […] in proportion to their respective means” (Article 214 of the French Civil Code). Spouses are also under an obligation to live together and must jointly choose the family residence (Article 215 of the French Civil Code).
Good to know: the family home and the furniture within it afford special protection. Any act of disposal relating to them (for example, selling or giving them away) requires the consent of both spouses, regardless of whether the property belongs to only one of them (Article 215, paragraph 3, of the French Civil Code).
Marriage does not affect the rights each spouse held before marrying
Each spouse retains full legal capacity (Article 216 of the French Civil Code), may open a bank account independently (Article 221 of the French Civil Code), freely pursue a profession and dispose of their earnings and salary (Article 223 of the French Civil Code). Each spouse is also free to manage and dispose of their personal property (Article 225 of the French Civil Code).
Marriage also entitles each spouse to use their spouse’s surname as a customary name (Article 225-1 of the French Civil Code).
Rules governing spouses’ dealings with third parties
These rules are intended to protect third parties who may be unaware of the spouses’ matrimonial situation.
Accordingly, “Each spouse has the power to enter alone into contracts for the maintenance of the household or the education of the children” (Article 220 of the French Civil Code). However, the spouses are jointly and severally liable for any resulting debt, meaning that the creditor may seek repayment from either spouse.
This joint and several liability do not apply where the expenditure is manifestly excessive, having regard to the household’s standard of living, the usefulness or otherwise of the expenditure, or the good or bad faith of the contracting third party. Nor does it apply to instalment purchases or loans entered by one spouse alone, unless the loans concern modest sums necessary to meet everyday household needs.
Similarly, where one spouse acting alone carries out an act of administration or disposal in relation to movable property (for example, selling a vehicle), that spouse is deemed to have the authority of the other spouse to do so (Article 222 of the French Civil Code).
Rules designed to prevent the household’s interests from being jeopardised
These rules apply in particular in the following circumstances:
- Where “one spouse is unable to express their wishes or where their refusal is not justified by the interests of the family”, the other spouse may obtain judicial authorisation to carry out an act alone (Article 217 of the French Civil Code).
- Where “one of the spouses seriously fails to fulfil their duties and thereby jeopardises the interests of the family, [the judge] may order any urgent measures required to protect those interests”. For example, the judge may prohibit one spouse from selling property forming part of the community property (Article 220-1 of the French Civil Code).
What happens if a spouse fails to comply with the obligations imposed by the mandatory primary matrimonial regime?
If these rules are breached, the other spouse may apply for divorce. For example, if one spouse leaves the marital home and no longer complies with the obligation to live together laid down in Article 215 of the French Civil Code, the other spouse may, after one year, apply for divorce on the ground of irretrievable breakdown of the marital relationship (altération définitive du lien conjugal) (Article 238 of the French Civil Code).