French matrimonial physics

Fri 22 May 2020, Philippe Ropenga Estate management

You know that theory matters to me, and I know that it matters to you too. What would you otherwise do on this blog? This is why I have chosen a simple case to explain you something that surprises French law students but not trust lawyers. French matrimonial law is governed by a well-ordered theory (1) that applies to a body of law structured by experience (2).

1 Well-ordered theory

Spouses often manage their assets by acting on three vessels (1.1) that follow a guiding principle (1.2).

1.1 Three communicating vessels

Every couple has to choose a matrimonial regime; the default regime applies when no choice is made. As usual, Legifrance translation of the French civil code will be used in the post. It can be found on legifrance.gouv.fr . Article 1403 §1 of the French civil code provides that Each spouse retains full ownership of his personal separate property. There are at least two vessels, one per spouse, that contain the separate property of each spouse. If spouses decide to share anything or if they do not make any decision regarding their matrimonial regime, a community vessel appears. §2 of the said Article states that The community is entitled only to fruits collected and not consumed. But compensation may be due to the community, at the time of its dissolution, for the fruits that a spouse failed to collect or has fraudulently consumed, without, however, any inquiry being admissible beyond the last five years. The community vessel is designed to collect as much property as possible at the expense of the spouses' vessels. This regime is favourable to the spouse who cannot accumulate personal property since income used to maintain the household falls into the community vessel. The share of the spouse who has smaller income grows as he acquires rights over property that he has not bought. Nowadays this rule has a downside because of easy access to consumer loans and credit cards. Debts made by the spouse who earns more are a heavy burden to share for the spouse who earns less since the same rule applies to the passive side of the community.¹ Spouses who do not want to share any community can choose the separation of property regime.² They can also choose to create a custom community that for example will not grow automatically to integrate the income of a spouse and will only contain certain pieces of property.³

The community vessel matters from a theoretical point of view since it influences any matrimonial regime including that of separation.

1.2 A guiding principle

Personal vessels are not directly connected to each other. Article 1433 provides that:

The community owes reimbursement to the owner spouse whenever it has drawn benefit from separate property.

It is so notably, when it has collected funds which were separate property or that came from the sale of a separate property, without an investment or a re-investment, having been made therewith.

If a controversy arises, proof that the community drew benefit from separate property may be adduced by any means, including testimony and presumptions.

Article 1412 considers the opposite situation and states that Compensation is due the community that has paid a personal debt of a spouse.

The three-vessel configuration shows that a matrimonial regime is never static. It favours a dynamic approach of a household. Each spouse has to contribute to the upkeep of the household and to the children's education according to Article 220. It makes sense and shows that even in a case of separation, without a community vessel, the separate-property vessels are not hermetically separated. Article 1421 §1 provides that Each spouse has the power to administer alone the common property and to dispose of it, subject to being accountable for faults committed in his management. Acts entered into without fraud by a spouse may be opposed against the other. The Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases has decided a case on the ground of this Article.⁴ A wife requested an explanation regarding the use of significant sums of money that were part of the community and had been withdrawn by the husband in the interest of the community. The Cour of Appeal reminded the claimant that during marriage sums in community were presumed used in the interest of the community. Hence, a claim regarding the use of money could only be brought by a spouse able to rebut the presumption. The Appeal judges noted that the claimant had not established fund misuse and therefore dismissed the claim. The Cour de cassation reaffirmed the existence of the presumption but decided that a spouse who had been asked to provide information about his management had to tell what he had done with community money before divorce. Hence, the supreme court quashed the appeal case. The right to information, unlike the claim regarding fund misuse, is not covered by the presumption. The necessity to upkeep the household justifies that both spouses are liable for debts related to the family house and to children's education. It implies that one spouse is able to engage the personal property of the other to pay for household expenses.

It has been seen that matrimonial regimes were based on a system of communicating vessels that favoured a dynamic approach of household management. Let us now see that there is more. Matrimonial regimes are based not only on theory but also on experience.

2 Empirical structure

Matrimonial law has a hybrid background (2.1). Comparison of French matrimonial law with trusts reveals two approaches of estate management (2.2).

2.1 A hybrid background

Creditors can enforce the payment of expenses made by one spouse to maintain the household and seize property from any of the three vessels. French ownership rule protects one's property from the interference of someone else. The legal title cannot be divided and cannot be used by the other spouse for the children's benefit. Matrimonial regimes seem strange to anyone who pays attention to numerus clausus in property law. What kind of legal title is this? Let us now have a look at Article 1413 of the French civil code:

Payment of debts which either spouse owes, for whatever reason, during the community, can always be enforced on community property, unless there was fraud of the debtor spouse and bad faith of the creditor, and subject to compensation to the community, if any is due.

Not only can a spouse interfere with his spouse's personal property for the benefit of the household but the creditors of one spouse also are allowed in principle to seize community property. This seems strange to anyone who follows the theory of a numerus clausus that favours absolute ownership through an indivisible legal title.

How do you explain it?

1. You consider that this provision preserves creditors' rights and you are happy with this kind of explanation. You know that this is not an explanation but you do not care. That's fine, no comment.
2. You know that Article 544 of the French civil code provides that Ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.⁵ You feel that this matrimonial community has nothing to do with the French abstract and indivisible legal title. Congratulations for wisely following your instincts! You are right. France did not have a uniform civil law before 1804 and the first edition of the civil code. The Code promotes an abstract re-interpretation of Roman law of ownership. It has however not removed institutions that were successfully used long before 1804.⁶ The 1804 Code is seen as one of the main sources of the modern civil-law tradition. The code recognises the matrimonial community as part of this civil-law tradition despite community's incompatibility with the modern French theory of ownership. The 1804 Code has masterfully combined the legal theory of that time with rock-solid empirical approach regarding solutions that are still efficient today. Comparative legal studies may rely mainly on archetypes. Some practitioners consider also that stuffing legal structures with the facts of a given matter is the only thing that a practitioner should do to avoid being held liable. The result may however not seem convincing to the client who has to pay for the legal service. A less standardised approach indicates that legal institutions may also have an empirical structure. Structural intricacies are not necessarily the main reason for using or not using a given legal device across different jurisdictions.

Let us now quickly see that this case like many others examined on this blog illustrates a different approach of estate management issues between French law and English law.

2.2 Two different approaches

This case illustrates the fact that in French estate-managing cases, accounts really matter and that the interest itself is not extensively discussed.⁷ You also know that paying attention to interest helps to find practical answers to common but thorny issues.⁸ You have read several posts about estate management on this blog⁹, and you know that it is possible to take interest into account in French estate-management matters.¹⁰ French law will always be different to that of jurisdictions that are historically based on Equity. Paying attention to legal theory helps to get around practical obstacles.

It has been seen that structural differences between French law and trust law revealed different approaches.

In brief, in marriage as in physics, it is important to rely on principles as well as on experience.

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