French Supreme Court Rules Primary Matrimonial Property Regime is an Overriding Mandatory Provision
This post was written by Fabienne Jault-Seseke, who is Professor of Private Law at the University of Versailles Saint-Quentin (Paris Saclay).
On 12 June 2024, the French Supreme Court for civil and criminal matters (Cour de cassation) confirmed in a ruling that the “primary” matrimonial property regime is defined by mandatory laws, which are applicable when the spouses are habitually resident in France. The Court thus reiterates the pragmatic solution it adopted in 1987.
The Decision
The case concerns two spouses married in Syria in July 1992 and residing in France. Prior to their divorce in France in 2019, the wife had entered into a lease agreement on her own. Part of the rent remained unpaid, and the landlord sued her and her ex-spouse for payment.
The ex-husband claimed that he was under no obligation. He alleged that the effects of marriage are governed by a foreign law, so that the provisions of French law, specifically those relating to household solidarity, were not applicable to the case. The Court of Appeal applied French law after noting that the plaintiff had not demonstrated that the foreign law invoked would lead to a different solution.
The ex-spouse appealed to the French Supreme Court. He rightly argued that the burden of proof regarding the content of the foreign law lies with the judge. However, this argument was rejected. The Cour de cassation dismissed the appeal by substituting new reasons to the reasons given by the lower court and repeated the well-known formula of article 3 of the Civil Code, according to which lois de police (overriding mandatory provisions) are binding on all those who live in the territory. It went on to state that “unless there is an international agreement to the contrary, the rules relating to the respective duties and rights of spouses set out in Articles 212 et seq. of the Civil Code are of territorial application”. As the spouses were both resident in France during the period covered by the lease which gave rise to unpaid rent, article 220 of the French Civil Code, which provides for solidarité ménagère (joint liability for household debts), was applicable.
The question of the law applicable to the matrimonial property regime is not directly considered by the Cour de cassation, which only rules on the applicability of an overriding mandatory provision. The French supreme court qualifies as such the rules of article 212 of the Civil Code. It also specifies the connecting factor to France which triggers the application of these mandatory rules. Unsurprisingly, this is the spouses’ residence in France. This solution is not new. The Cour de cassation had already adopted it in 1987 in the Cressot decision (Civ. 1re, Oct. 20, 1987, case no. 85-18.877). At that time, it was a question of contribution to the expenses of the marriage (covered now by the Maintenance Regulation) and not of solidarité ménagère.
While this solution comes as no surprise, its scope raises a number of questions.
Assessment
Temporal scope
The marriage took place before September 1, 1992, so that neither the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes, nor Regulation 2016/1103, were applicable. The law applicable to the matrimonial property regime is governed by the rule of French private international law based on case law. The law it designates can be easily combined with the “lois de police” methodology.
The Hague Convention does not contain any provisions specific to overriding mandatory rules. This does not mean, however, that the law designated by the conventional rule applies even in the presence of overriding mandatory rules. The multilateral choice of law methodology and the mandatory rules methodology are complementary, and it is not necessary to spell this out. Yet in the ruling of 12 June 2024, the Cour de cassation reserves the application of international conventions, suggesting that the mandatory nature of the provisions of the primary regime would not allow derogation from the law designated by a conventional conflict of laws rule. In this context, Article 9 of the Hague Convention is of utmost importance. It states that, under certain conditions ‘the law of a Contracting State may provide that the law applicable to the matrimonial property regime may not be relied upon by a spouse against a third party where either that spouse or the third party has his habitual residence in its territory’.
For marriages contracted after 29 January 2019, or for spouses married before but who make a choice of law after this date, the question arises in different terms. The law of the matrimonial property regime is defined by Regulation 2016/1103, which includes several provisions that may indirectly allow the application of the law of the spouses’ habitual residence, by way of derogation from the law of the matrimonial property regime. Article 28 ensures the protection of third parties and Article 30 provides for the application of the mandatory rules of the forum (See. H. Péroz, “Régime matrimonial – Les lois applicables au régime primaire : Incidences du règlement (UE) 2016/1103 sur le droit applicable au régime primaire en droit international privé français”, JDI 2017, doctr. 9 ; S. Clavel, “Article 30”, in S. Corneloup, V. Egéa, E. Gallant, F. Jault-Seseke (dir.), Commentaire des Règlements 2016/1103 et 2016/1104, SLC, coll. Transeuropexperts, 2018).
Provisions Concerned
The ruling covers a whole range of provisions, including articles 212 et seq. of the French Civil Code. It must be understood that these are articles 212 to 226 of the Civil Code, which make up the chapter on the respective rights and duties of spouses. This overall view of the provisions of the so-called primary regime lacks nuance. These provisions are quite diverse, and not all of them are intended to be internationally binding.
Couples Concerned
The ruling concerns the effects of marriage. It should also apply to the effects of a registered partnership. Thus, the rule providing for the solidarité ménagère of the partners (Article 515-4 of the French Civil Code) should also apply to partners residing in France, even if the law governing the partnership is a foreign law.