Prenuptial and marriage contracts

Marriage has changed since the 1980s, as attested by the rise in cohabitation outside marriage: in 2011, nearly one in four couples in France were not married.

But this recent trend follows on major transformations in marriage throughout the nineteenth and twentieth centuries. To apprehend these changes, we need to move beyond the question of marrying to type of matrimonial regime. Property ownership and management are major issues within marriage, in part because they affect balances between spouses. On the basis of data on unions in France since 1855, three major trends may be identified.

First, marriage is declining: fewer and fewer couples are married (97% in 1968; 75% in 2011). Second, the matrimonial property regimes couples choose are constantly changing. Third, especially since 1965, wives have acquired a degree of independence and decision-making power they were deprived of before.

 

Since France’s Civil Code was instated in 1804 and until 1965, the regime called “community of movables and acquisitions” automatically applied for all marriages without a prenuptial agreement or contract; i.e., spouses equally owned all movable goods (furniture, jewelry, stock shares), including those acquired during marriage. Managing that property, however, was the husband’s prerogative, including property belonging to his wife. An alternative that freed couples from this system was to draw up a marriage contract. In the second half of the nineteenth century nearly four in ten couples chose the contract regime. By 1915 that proportion had fallen sharply and stabilized at two in ten; by 1975 it had fallen still further (see the black curve on the Figure)

 During the period, most couples who eschewed the default regime chose community of acquired property, wherein they did not share movable property acquired before marriage; in this regime, movables owned before marriage remain separate while those acquired during marriage belong to both spouses. Other couples—accounting for slightly over 5% of marriages in the mid-nineteenth century—chose the dowry regime; in practice, nearly all dowries came from the female spouse. This regime became marginal in the twentieth century. Separation of property, where each spouse owns only what he or she acquires or inherits, was extremely rare in the nineteenth century in France but increased regularly throughout the twentieth. In these last two contract types, the wife could manage her property herself on condition that her husband agreed to this arrangement.

The law of 13 July 1965 on matrimonial property regimes upset this balance. Prior to that date, husbands had the legal right to make all decisions (expenditures, purchases, sale of real estate). With the new law, husbands could no longer subscribe loans or conduct real estate operations without their wives’ consent. Furthermore, the law abolished the dowry regime, and in the absence of a prenuptial agreement, the default regime is now community of acquisitions. Prior to 1965, this regime required a contract and only a minority adopted it; with the new law, more than 80% of spouses are covered by the acquisitions property regime. Wives alone can now make decisions concerning their assets; their husbands need not consent.

Since 1965, the power of decision is strictly linked to assets: each spouse makes his or her own decisions concerning his or her own property and spouses decide together what to do with property owned in common. Collectively owned assets are thus managed collectively while decision-making is more individual than in the past for personal property. Moreover, the constant rise in separation of property contracts suggests that in France today people tend to think of assets as individual. 

Source: Nicolas Frémeaux, Marion Leturcq, 2016, Wealth, marriage and prenuptial agreements in France (1855 - 2010), Ined, Documents de travail n° 221, 73 pages

Contact: Marion Leturcq

Online: July 2016