Marriage or PACS: which should you choose?

Marrying without a contract: the default regime

Spouses who marry without a contract are automatically subject to the default French regime, the “community of acquired property” (communauté réduite aux acquêts), unless there is an international element (for example, one spouse’s foreign nationality or a first common habitual residence established abroad after the marriage): the applicable law then depends on European and international rules, which a marriage contract makes it possible to choose. This regime distinguishes between community property and each spouse’s personal property.

• Community property: everything the spouses acquire during the marriage with their income, together or separately, as well as the income itself (salaries, but also rent or interest produced by personal property).
• Personal property: what each spouse owned before the marriage, what they later receive by gift or inheritance, and strictly personal belongings. A property bought with personal funds remains personal if the deed of purchase states the origin of the funds and the intention to reinvest them, and if those funds cover at least half of the price and costs; otherwise, the property is community property and the spouse who financed it is entitled to compensation (a “récompense”) on division.

Debts incurred during the marriage in principle bind the community property. On divorce or death, each spouse takes back their personal property and the community is divided in half. This regime is less suitable when one spouse has an occupation exposed to debt, receives significant income from personal property (which falls into the community), or has children from a previous relationship.

The most common marriage contracts

A marriage contract is a notarial deed signed before the wedding; it takes effect on the day of the marriage. Three regimes are most often chosen.

• Separation of property. Each spouse remains the owner of what they acquire and is solely liable for their own debts, except debts for household maintenance and the children’s education, for which spouses are jointly liable whatever the regime, within the limits set by law. Property bought together is held in joint ownership, in the proportions stated in the deed. Common among the self-employed and in blended families, this regime has a drawback: the lower-earning spouse does not share in the other’s increase in wealth, unless a “société d’acquêts” is added, a small community limited, for example, to the family home.
• Participation in acquired property. During the marriage, everything works as under separation of property. When the marriage ends, each spouse’s net increase in wealth is compared: the spouse whose wealth increased least is entitled to half of the difference between the two, in the form of a participation claim. This regime combines independence and sharing.
• Universal community. All the spouses’ property, present and future, becomes community property, except property that is personal by nature. Often combined with a clause allocating everything to the survivor, who then receives the whole without an estate being opened on that property, it calls for great caution where there are children from another relationship, who have a remedy (the action en retranchement), or professional debts; it can also have a tax cost for the couple’s common children, who receive everything at once on the second death.

Community regimes, and a société d’acquêts added to separation of property, can include adjustment clauses: preciput (allowing the survivor to take one asset, often the home, before any division), unequal division, exclusion of business assets. The contract is tailor-made.

PACS: a lighter framework, to be supplemented

The civil solidarity pact (pacte civil de solidarité) is a contract entered into by two adults to organise their life together. Partners owe each other material help and assistance and are jointly liable for debts incurred for everyday needs, within the limits set by law.

By default, a PACS follows separation of property: each partner remains the owner of what they acquire. In their agreement, partners can opt for joint ownership (indivision): property acquired after this agreement is registered is then deemed to be owned in equal halves, whatever each partner’s contribution, subject to the exceptions provided by law (personal items, property created by a partner, property bought with funds held before the pact or received by gift or inheritance, where the deed of purchase says so). If the deed does not say so, the property is owned in equal halves, but the partner who financed it keeps a claim against the other.

The PACS agreement is either drafted by the partners and registered at the town hall, or received by a notary, who registers it. A notarial agreement allows joint ownership, the contribution to household expenses and what happens to the home to be organised precisely.

Above all, a PACS does not make the partner an heir. Without a will, the surviving partner receives nothing from the estate; they only have, unless the deceased provided otherwise by will, the right to remain in the home for one year. Under current tax law, a partner named in a will is exempt from inheritance tax, like a surviving spouse. A PACS ends by joint declaration, by decision of one partner, by marriage or by death, under a procedure far simpler than divorce.

Protecting your spouse or partner

• A gift between spouses, or “donation au dernier vivant”, is reserved for married couples. Received by the notary at any time during the marriage, it extends the surviving spouse’s rights beyond what the law grants, within the limit of the “special disposable portion between spouses”: where there are children, the spouse can receive, at their choice, the freely disposable portion in full ownership, one quarter in full ownership and three quarters in usufruct, or the whole in usufruct. It only takes effect on death and remains revocable by the spouse who made it.
• A will is essential to protect a PACS partner. Entirely handwritten, dated and signed by its author (holographic will) or dictated to the notary in the presence of two witnesses or a second notary (notarial will), it cannot, where there are children, exceed the portion that the law allows to be freely disposed of without being liable to reduction.
• Life insurance passes capital to the named beneficiary, in principle outside the estate and under its own tax regime. The beneficiary clause is worth rereading, particularly when it refers to “the spouse” while the couple is in a PACS.

Changing your mind later

Nothing is set in stone. Spouses can change their matrimonial regime at any time, in the interest of the family, by notarial deed. Adult children are informed personally and creditors by publication; they can object within three months, in which case court approval is required. A change is common when a business is set up or, after many years of marriage, to strengthen the protection of the survivor.

PACS partners can, by mutual agreement, amend their agreement at any time, for example to adopt joint ownership; the amending agreement is sent to the authority that registered the pact (town hall or notary), and joint ownership adopted in this way only applies to property acquired afterwards. If they marry, the PACS ends automatically.

In summary

Marriage without a contract creates a community; a marriage contract allows it to be set aside or adapted; a PACS separates assets by default but does not protect the surviving partner without a will. No formula is right in itself: the choice depends on each partner’s occupation, assets, children and plans as a couple, and can be revisited later. Marriage contracts and notarial PACS agreements fall under the notaries’ regulated tariff, plus any registration duties (see Fees); an agreement registered at the town hall costs nothing.

This article is for general information only and does not constitute legal advice. The rules change over time: each situation is reviewed during an appointment with the notary. Further reading: Family law, Fees, Frequently asked questions.