🇫🇷Matrimonial Property Regimes: What Counts as Marital and Under Which Law

When an internationally mobile family sits down to structure its capital, the conversation usually opens with a trust or a holding company. That is the second step. The first is to establish who actually owns the assets to be structured. The answer comes from the matrimonial property regime: the rules on what becomes joint by the mere fact of marriage, what stays separate, and how the pool is divided on divorce or death. Every couple has a regime — silence does not mean there are no rules, it means the default rules apply.

The layer is routinely underestimated because it is invisible in peacetime. While the marriage functions, nobody asks whose asset it is. The question surfaces at three moments — divorce, death, insolvency — and that is when the owner discovers that the company stake, the flat bought a decade ago or the brokerage portfolio is half his spouse's.

For an international family there is a second storey: the regime is set not by the law that looks obvious but by a conflict-of-laws rule. A Russian couple who married in Moscow and moved to Madrid a year later may find their property relations governed by Spanish law; a couple who started out in Paris and settled in Zurich may find Swiss law has rewritten their regime retroactively to the wedding date.

Three families of regimes

Community of acquests. Everything acquired during the marriage forms a common pool divided equally; pre-marital assets, inheritances and gifts stay separate. This is the French communauté réduite aux acquêts (art. 1401 ff. Civil Code: earnings and acquisitions fall into the community, what is received par succession, donation ou legs does not), the Spanish sociedad de gananciales and the Italian comunione legale — the default since the 1975 family law reform, with art. 179 of the Civil Code listing six categories of beni personali. Most Latin American codes follow the same logic: Brazil's comunhão parcial de bens, Argentina's comunidad de ganancias. Russian joint ownership belongs to this family too.

Separation of property. Marriage does not move title: each spouse owns what is registered in their name and is liable with their own assets. England and the common law world are the classic case; in continental Europe Austria works this way, where the statutory Gütertrennung leaves each spouse whatever they brought into the marriage and whatever they acquired. But pure separation barely exists in practice: on divorce the Austrian court divides marital use assets and marital savings, and title stops being the decisive criterion.

Deferred community and equalisation of accrued gains. Separation during the marriage, equalisation when it ends. Germany's Zugewinngemeinschaft: the spouse whose assets grew more over the marriage compensates the other with half the difference in cash (Zugewinnausgleich) — a monetary claim, not a share in specific assets, which is a critical distinction for a business owner. The Nordic model is closer to community in its outcome: Swedish law splits assets into giftorättsgods and enskild egendom, each spouse manages their own property and answers for their own debts during the marriage, and on divorce or death the net value of the giftorättsgods is pooled and split in half.

Russia: joint ownership and the insolvency layer

The statutory regime is joint ownership: whatever is acquired during the marriage is common regardless of whose name is on it or who earned it. Art. 36 of the Family Code carves out pre-marital property, gifts and inheritances, items of personal use (luxury goods aside) and the author's exclusive right in what they created; on division there is a presumption of equal shares (art. 39).

The liability perimeter matters more in practice. Personal obligations are enforced against the debtor's own property, and if that is insufficient the creditor demands that their share be carved out of the common pool; the whole common pool is exposed where the obligation is joint or where what one spouse received was used for the family's needs (art. 45). Art. 46 adds a rule people remember too late: a spouse must notify creditors of the conclusion, amendment or termination of a marital agreement, and failing that “is liable for their obligations regardless of the content of the marital agreement”. An agreement never shown to the bank does not exist as far as the bank is concerned.

The insolvency layer is harsher. The bankruptcy estate of an individual includes jointly owned property: it is sold as a whole and the spouse is paid their share out of the proceeds; if no division has taken place, that dispute goes to a court of general jurisdiction with the trustee and creditors joined, and the asset cannot be sold until it is resolved (Supreme Court Plenum Ruling No. 48 of 25 December 2018). Marital agreements and out-of-court division agreements are attacked as transactions, including as suspicious transactions under art. 61.2 of the Insolvency Law. The conclusion is blunt: a lopsided agreement signed against a backdrop of debt does not protect, it flags. What works is an agreement concluded early, economically explicable and disclosed to creditors — how such a package is built across several jurisdictions is set out in the piece on cross-border prenups.

England: no regime, judicial discretion instead

English law knows no matrimonial property regime: marriage of itself does not move ownership. Instead the court is given the widest discretion on divorce — under s. 25 MCA 1973 the judge weighs resources, needs, the length of the marriage and the parties' contributions and divides as it considers fair. For a long marriage the starting point is equal sharing of matrimonial property, and where needs cannot otherwise be met, pre-marital and inherited assets are pulled in. Here the regime is defined by discretion, not by title; the mechanics of division are covered in property division in a cross-border divorce.

The tool international families discover too late is Part III of the Matrimonial and Family Proceedings Act 1984 — the “second bite”: an application to an English court after a foreign divorce that England recognises. Three conditions. The jurisdictional gateway under s. 15 — either party domiciled in England and Wales, one year's habitual residence, or a beneficial interest in a dwelling-house that was a matrimonial home. Leave under s. 13, granted only where there is “substantial ground for the making of an application”; in Agbaje v Akinnoye-Agbaje [2010] UKSC 13 the Supreme Court read “substantial” as “solid” — a higher threshold than a serious issue to be tried, but not an extraordinary one. And the appropriateness filter under s. 16: the parties' connections with England and with the country of the divorce, orders already made, enforceability, elapsed time. The key holding in Agbaje: neither hardship nor injustice is a precondition of the jurisdiction, but relief should not exceed what the spouse would have received in an English suit. Where the only jurisdictional basis is the matrimonial home, the court's powers are confined to that property (s. 20). In Agbaje itself the wife, awarded a life interest in a Nigerian house and a modest lump sum, obtained 65% of the proceeds of the London property in England.

The United States: nine states against forty-one

America runs both models at once. Nine states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin — are community property jurisdictions: marital acquisitions belong to the spouses equally from the moment of acquisition. The other forty-one states and the District of Columbia apply equitable distribution: property is separate, and on divorce the court divides “fairly”, which is not the same as equally. A handful more — Alaska, Tennessee, Kentucky, Florida, South Dakota — allow couples to opt into community by agreement or through a community property trust.

The real problem is moving between states. An asset bought in California as community property does not automatically become separate in New York, and the reverse is equally true. For the reverse case California and Arizona invented quasi-community property: assets acquired in another state are treated on divorce or death as if they had been community. A family that has lived in three states over twenty years ends up with a mosaic pool that has to be unpicked by the date and place of each acquisition.

Which law applies: Regulation 2016/1103 and the mobility problem

Inside the EU the conflicts layer is unified by Regulation 2016/1103 (with the parallel 2016/1104 for registered partnerships). Adopted under enhanced cooperation, it has applied since 29 January 2019 in 18 States: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden. Ireland, Denmark, Poland, Hungary and the Baltic States are not among them — their national conflict rules continue to apply.

The rules are straightforward. Spouses may choose the applicable law, but not any law: only that of the State of habitual residence or nationality of one of them at the time of the agreement (art. 22); a change of choice takes effect prospectively unless the spouses agree otherwise, and can never prejudice third-party rights. Absent a choice, a cascade applies (art. 26): the law of the spouses' first common habitual residence after the marriage → their common nationality at the time of the marriage → the law of closest connection. A narrow exception lets the court apply the law of the last common habitual residence where it lasted significantly longer and both spouses relied on it in arranging their property relations.

The regulation's defining feature is immutability: relocation does not change the applicable law, so a couple who married in Milan and settled in Lisbon remain under the Italian regime. Outside the regulation the logic can be the opposite. The classic example is Switzerland: under art. 55 PILA, when spouses transfer their domicile the law of the new domicile applies retroactively as of the date of the marriage, unless they excluded retroactivity in writing or concluded a marital agreement. A couple moving from France to Zurich find that their communauté has become the Swiss participation regime with effect from the wedding day. That asymmetry is the mutability problem.

A third layer is the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes, ratified by only France, Luxembourg and the Netherlands (in force since 1 September 1992). It still matters: the regulation does not affect conventions to which Member States were party when it was adopted (art. 62), and its applicable-law chapter covers only spouses who married or chose the law on or after 29 January 2019 (art. 69(3)). For earlier marriages the convention governs — with its own automatic change of the applicable law: on moving to the State of common nationality, or after ten years of habitual residence, the law changes by itself, but only for the future (arts. 7–8).

The interface with succession

On the death of a spouse the sequence has two stages: the pool is first divided under the matrimonial property regime and the survivor's share is carved out; only the remainder becomes the estate, distributed under the succession statute — inside the EU, under Regulation 650/2012. The two statutes are determined by different connecting factors and may well point to different legal systems.

The German example is instructive: under § 1371 BGB, where the surviving spouse inherits, equalisation of accrued gains is replaced by a flat one-quarter increase in their statutory share. Whether a foreign court characterises that rule as matrimonial property or as succession is a question worth tens of percent of an estate. The practical rule follows: never compute a forced share before the spousal share has been computed. The succession statute is unpacked in applicable law to succession, and protected shares in forced heirship and the statutory share.

What to do about it

Record the choice of law in writing. Inside the 2016/1103 perimeter this is the cheapest move available: the law of one spouse's residence or nationality survives relocations and can be synchronised with the choice of law for succession. Outside the perimeter the technique is the same — a marital agreement with an express choice-of-law clause and, where needed, an exclusion of retroactivity.

Re-check the regime on every move. The question is whether the applicable law has changed de facto, and from what date. The answer depends on where the couple moved to, not where from. In countries with a mutable statute the agreement is signed before the move, not after.

Treat a concentrated asset separately. A stake in the family business sitting inside the common pool turns a marital crisis into a corporate one: under community regimes it is divided in kind, in Germany it becomes a monetary claim against the owner, in England a matter of judicial discretion. Valuation and buy-out mechanics belong in the shareholders' agreement, agreed in advance.

Remember that a structure does not override the regime. A trust or a private foundation moves title, but does not answer the question of whose money went in: assets transferred out of the common pool without the spouse's consent or on the eve of a crisis come back into the division. What works are structures set up early and with a coherent family rationale — see how a trust works and personal and hereditary foundations.

This material is analytical in nature and does not constitute individual legal advice.

Sources

• Council Regulation (EU) 2016/1103 on matrimonial property regimes — EUR-Lex
• Council Regulation (EU) 2016/1104 on registered partnerships — EUR-Lex
• Matrimonial property regimes by country — European e-Justice Portal
• HCCH 1978 Convention on the Law Applicable to Matrimonial Property Regimes
• Matrimonial and Family Proceedings Act 1984, Part III — legislation.gov.uk
• Supreme Court of the Russian Federation, Plenum Ruling No. 48 of 25.12.2018 — ConsultantPlus
• Art. 46 of the Russian Family Code — ConsultantPlus
• Swiss Federal Act on Private International Law (PILA), art. 55 — Fedlex