Q&A: What is my Matrimonial Property Regime and Why Does it Matter When I Make my Will?

Q: We (Jane and Allan, a married couple from Bristol) are currently planning to purchase a property in Beziers, in the South of France. As part of this process we are also making a new Will. We have been asked by our solicitor what our marital property regime (marital contract) is. We have never heard of a marital property regime. What are they?

A: In the UK when we marry we retain ownership of our own assets. So, when you married, Jane’s assets remained Jane’s and Allan’s assets remained belonging to Allan. This way of owning assets continues after you marry, so if for example, Jane were to buy a property using her own money, this new property would belong to Jane.

It is possible for a married couple to own assets jointly, but the couple must choose this. For example, buying your Bristol home as ‘joint tenants’. This means that when one of you dies, the survivor will automatically become the sole owner of the property.

We do not have marital contracts as such in the UK, although it is possible to enter into a pre-nuptial or post-nuptial agreement.

However, unlike the UK, if you marry in France you must opt into a ‘matrimonial property regime’. This regime will determine how you own assets between you, how your assets are split between you on death, or if you divorce.

A: If you married in the UK, you will be treated in France as having a regime of separation of assets (séparation de biens). This means that you will be treated as each owning your assets, rather than owning them jointly, unless you explicitly opt to own an asset jointly (such as a joint bank account).

However if you move to, and end up deciding to live in France you can visit a notaire and ask them to change your marital property regime. This could be to either a communauté réduite aux acquêts where all assets once you have changed regime are deemed to be held jointly, regardless of whose name is on the ownership deeds, or a modified version of this regime such as where all assets, whenever acquired, even if this was before the marriage took place, are deemed to be held jointly, communauté universelle.

A: France operates under a succession system of forced heirship. This means that when you die, a portion of your estate must be left to your children, regardless of what it says in your Will. This can be particularly concerning if you intend to leave all your French property to someone other than your children, such as your spouse.

If you have a séparation des biens regime and decide to make a Will to cover your French assets, you can exercise some control over how your assets should be distributed. The European Succession Regulation (Brussels IV) allows you to elect for the law of your nationality to govern the devolution of your estate, and bypass the French forced heirship rules in some cases.

If you are British (most closely associated with England and Wales) you can therefore elect for British law (English and Welsh law) to apply to your Will, which in some circumstances will allow you to avoid French forced heirship rules.

Please note that a change to French law came into force in 2021 (this change of law is currently being challenged). If you live in France and have children, and you are not leaving the children their ‘reserved share’ as set out under French law, your election of English law can be overruled by this 2021 law.

Jane and Allan should think about French succession law and consider what will happen to the property when they die. They should certainly consider making a Will with an election of British (English and Welsh) law to apply.

A: If you are living in France, then you will be able to change your marital regime. If you have children from your current marriage only (eg no children from earlier relationships) then you could change your marital regime to one of communauté universelle avec clause d’attribution intégral, this means that when one of the spouses dies, all your assets will pass to the surviving spouse.

By carefully considering your circumstances, whether you live in France or not, whether you have children or not, and how you want to leave assets, you can often ensure that your French assets are distributed on your death as per your wishes by ensuring that you have a carefully considered Will and possibly a change of marital property regime.

Consulting with a cross-border solicitor is crucial to ensure your plans are legally sound and tax-efficient in both countries, particularly if your family situation is complex.