Separation of goods: a real protection?

To each one his property ... and his debts! Married or pacsé, check that this regime corresponds to your needs and brings you the necessary guarantees.

Le régime matrimonial de la séparation de biens est de plus en plus choisi par les couples français. - © aldomurillo

French couples who are getting married today are more and more likely to prefer the notarial marriage contract and the separation of property regime (15%, according to INSEE), which since 2007 has also been the default of the pacs "Many young people adopt it because they have experienced the difficult divorce of their parents and prefer to defuse from the outset certain risks of conflict in case of separation.At each his property and his debts! Moreover, this regime has the advantage of clarity, "said Elodie Frémont, notary in Paris. Three essential arguments plead in favor of the regime of separation of property.

In the event of a risky professional activity

Self-employed entrepreneurs, artisans, traders and liberals often opt for the separatist regime. In this way, they protect the assets of their spouses whose property can not be seized in the event of bankruptcy. Be careful, the other spouse must not participate in the financing of this professional property nor be a surety, in order to prevent his patrimony from becoming seizable. But this sanctuarization also has its downside: when the business is flourishing, only the entrepreneur gets rich, not his spouse. At the time of retirement, in order to correct this disparity, the spouses may then have an interest in adopting a community matrimonial regime. This change is inexpensive because the supply of undivided property to the community is not taxed.

For peace of mind

The separation of property is deemed to bring simplicity: if we do not hear each other, everyone takes back his property. But after signing the marriage contract, many neglect to keep accurate accounts. In the event of a divorce, if one of the spouses has spent more or paid the taxes alone, he or she may then claim financial compensation. Another source of conflict if the couple has not kept reliable accounts: unless there is evidence that a property was financed in majority or in whole by the surviving spouse, it will be considered as half undivided to the estate . It will therefore be necessary to pay the heirs an amount equivalent to the value of this share. When a property is acquired by two, the use of the notary makes it possible to clarify the situation. The latter specifies in the deed of purchase the contributions and the share of repayment of credit respective. Fiscally, it must be ensured that one of the spouses does not then fund a much larger share than expected in the act: otherwise, it would be a disguised donation.

Finally, if the couple is led to live abroad, "it is necessary to introduce in the marriage contract a" choice of court "clause, says Me Frémont, so that the judge competent in case of divorce is a judge French. Legislation is less protective in other countries.

In a stepfamily

In the presence of children born of a previous union, new couples often choose the separation of property, in order to facilitate the succession between the surviving spouse and her stepchildren.

But additional precautions may be necessary, depending on the purpose. For example, "in the absence of a will, the wife inherits a quarter of the property. It is then his own children who will inherit these property after his death, while they had no filiation with the one who had built this heritage. It would have been better to provide for the widow a simple right of usufruct by will ", explains the notary. As for the pacsés couples, the preparation of their succession is extremely important: without testament, the partner inherits nothing.

Three solutions to protect your spouse

Regardless of the reason you chose the separation of property, you may feel the need to make arrangements to ensure that your spouse will inherit more than the estate law provides.

• The donation to the last living (or donation between spouses) is the most flexible. Each can then bequeath to his spouse a quarter of the estate in full ownership plus three quarters in usufruct.
• The donation inter vivos takes effect immediately, irrevocably: the property transmitted to the spouse will not return to the family of the donor, nor in case of divorce nor in case of death of the donee. Check with a notary if it meets your needs.
• The creation of a partnership of acquests is advised by some lawyers before buying new property through him. These goods are then placed in a "community bubble". As this tool is complex to master, it is better to entrust its editing and drafting the statutes to experts.