The French Civil Code and the declaration of separate property made by a spouse married under a community regime

French law provides a specific mechanism allowing it to be established that an asset acquired during the marriage was financed with separate funds. This declaration, known as a declaration of separate property, produces varying legal effects depending on the circumstances in which it is made. This article sets out the applicable rules and their legal consequences.

The principle laid down by the French Civil Code

Legal basis

Article 1434 of the Civil Code provides that employment or reinvestment is deemed to have been made for the benefit of a spouse where, at the time of acquisition, that spouse declares that the asset is acquired using separate funds or funds arising from the sale of a separate asset, and that the acquisition constitutes employment or reinvestment. Failing such a declaration in the deed of acquisition, employment or reinvestment can only result from the agreement of both spouses and then produces effects only between them.

Unilateral declaration of separate property at the time of acquisition

Effects in relation to third parties

Where the acquiring spouse declares, at the time of acquisition, that the asset is financed with separate funds, that declaration is in principle enforceable against third parties. The asset is then presumed to be separate property, unless proven otherwise.

Rights of the non-acquiring spouse

If the non-acquiring spouse does not immediately ratify the declaration, that spouse retains the right to contest it subsequently by proving that the asset was in fact acquired with community funds.

Absence of a declaration at the time of acquisition

Loss of the right for the acquiring spouse

Where the acquiring spouse fails to declare the separate character of the asset at the time of acquisition, that spouse loses the right to invoke it at a later stage. This solution has been confirmed by case law, in particular by a judgment of the Court of Cassation of 27 February 2013.

Subsequent recognition by the non-acquiring spouse

In this situation, the non-acquiring spouse may subsequently acknowledge the separate character of the asset. However, this recognition produces effects only between the spouses and is not enforceable against third parties.

Joint declaration of separate property

Strengthened legal effect

Where both spouses jointly acknowledge, at the time of acquisition, the separate character of the asset, this joint declaration is fully valid and enforceable against all persons. This mechanism makes it possible to secure the legal classification of the asset and to limit subsequent disputes.

Practical issues in matters of succession and patrimonial arrangements

The classification of an asset as separate or community property has direct consequences for:

• the composition of the estate,
• the rights of the surviving spouse,
• the rights of the heirs,
• the tax treatment of the transferred asset.

These issues are particularly sensitive where the estate includes assets located in several States or where foreign rules must be taken into account.

For further information

To understand the impact of these rules in an international and succession context, you may consult the page Inheritance in Spain for French nationals.