Альманах семейного права = Family Law Almanac. Вып. 2. Правовое регулирование имущественных отношений супругов современное состояние и перспективы = L

Matrimonial property system in Japan with a focus on the gender equality perspective

failure to pay child support, the courts may order the payment as an indirect enforcement provided unless the debtor is unable to repay the debt pertaining to the monetary claim due to a lack of solvency, or the repayment of the debt would cause severe hardship to his or her livelihood1.

5. Concluding remarks

There has been no direct revision of the matrimonial property system in the post-war period. Settlement of property acquired through cooperation between spouses during marriage has been achieved, outside the framework of the separate property system (Art 762), in the division of property in case of divorce (Art 768) and in the right of spousal inheritance in case of dissolution of marriage by death of one party (Art 890). However, it is not always clear how the two provisions are theoretically connected2. In the operation of the division of property, it focuses on the liquidation of matrimonial property as its function, whereby the property acquired by the couple in cooperation during the marriage is liquidated upon divorce, and by interpretation, particularly since the 1990s, case law and practice has tended to expand the property to be subject to liquidation. Furthermore, the liquidation of matrimonial property is based on the specific contribution ratio, and previous discussions have brought the contribution ratio of a full-time housewife closer to one-half, thus guaranteeing the property rights of a wife who is a full-time housewife3.

Although the ‘one-half rule’ was established in the division of property and the spousal inheritance share was raised to one-half, the intention was to guarantee the maximum property rights of the wife with no or less income as an equal party in marriage by standardising her contribution. Despite that the need to accommodate the increasing number of dual-earner marriages and diversity in family form and structure has been recognised, the family image at the centre of the debate has always been that of a married couple, together for life with their children and where the wife is a housewife. This also applies to spousal inheritance.

In order to respond to the reality and to examine the needs of spouses in concrete terms, the current law that is inadequate and insufficient shall be

1  See Arts 167-15 and 172 of Civil Execution Act 1979 which regulate on indirect enforcement for a monetary claim pertaining to child support.

2  Inubushi, Y. (2017) ‘Fu-fu zaisansei (Matrimonial Property System)’ in S. Ninomiya (ed.) Shin Chu-shaku Minpo 17: Shinzoku 1 (New Commentary on the Civil Vode of Japan Vol. 17: Relatives Part 1), Yu-hikaku, at 259.

3  Matsuhisa (2020) op. cit. no. 5 at 116.

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SPOUSAL PROPERTY RELATIONS

IN CASE OF DIVORCE IN FRENCH LAW

The property relations between the spouses in case of divorce always involve a separation of the couple’s assets. But this separation can be very different depending on the matrimonial regime of the spouses. Like laws in other countries, French law has characteristics that provide a general framework for marital property regimes. However, it allows the spouses to modulate this framework according to their needs by adopting a marital property agreement. The division of assets will then take place according to this matrimonial regime either in a standard way or by taking into account the agreements and the respective requests of the spouses. A French specificity should also be taken into account: the compensatory allowance after divorce which may be owed by one spouse to the other and which may have interactions with the liquidation of the matrimonial property regime.

1. Characteristics of the French law on matrimonial property regimes

French law is often characterised by a search for a balance between mandatory rules and contractual freedom, and it is true for matrimonial property law too. It contains a corpus of mandatory rules called the primary imperative regime (régime primaire impératif)1. This is a set of mandatory rules from which the spouses do not have the right to derogate even if they agree to do so.

In this corpus, different rules can be found such as the right of each spouse to open a bank account in his or her own name without the consent of the other, the joint and several liability for debts contracted for the needs of the couple or the education of the children, or the protection of the family home which means that the agreement of both spouses is required to dispose of the family home even if it belongs to only one spouse.

Apart from these mandatory rules, the spouses can choose the matrimonial regime they want and if they don’t choose, i.e. if they don’t make a notarized

1  Art. 214 et seq. of French civil code.

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matrimonial agreement, the French law automatically attributes to them the community of acquisitions regime (le régime de la communauté réduite aux acquêts)1. This is the legal matrimonial property regime in French law.

This regime is characterised by the constitution of a community of assets between the spouses from the day of the marriage until its dissolution by divorce or death. However, only properties that can be described in French as “acquits”2 are common.

“Acquêts” are composed of assets acquired for valuable consideration after the marriage, and this kind of assets are joint. However, assets already owned by one of the spouses before the marriage or received through gift, or inheritance are owned separately. We must add assets of a “personal nature”, like clothes, that are owned separately too. It should be noted that salaries are common assets. This rule applies also to the incomes of personal assets of the spouses. For example, if one of the spouses has an apartment bought prior to the marriage, this spouse has exclusive ownership of them, but in case it is rented by a 3rd party, the income of this rent becomes a common asset.

French law allows the spouses to choose another regime than the community of acquisitions with a notary agreement. This choice can aim at more separation or more community.

2. Marital property agreements

First, the spouses could choose to sign a contractual agreement in view of keeping the assets and debts separate. In this case, they can have a separation of property regime or participation in acquisitions regime.

In the separation of property regime (régime de la séparation de biens)3, there are only two pools of assets: the pool of assets of the spouse number one and the pool of assets of the spouse number two. There are no common assets. If the spouses decide to buy something together, that’s often the case for the family home, they will be in indivision and not in community. These two situations are governed by different rules for the management of the property and for the liquidation of the matrimonial property regime.

The participation in acquisitions regime (régime de la participation aux acquêts)4 is a kind of intermediary between the separation of property and the

1  Art. 1400 et seq. of French civil code.

2  This term is difficult to translate, sometimes “acquest” is found. 3  Art. 1536 et seq. of French civil code.

4  Art. 1569 et seq. of French civil code.

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community. There is no community during the marriage but in the event of divorce or death, one spouse is entitled to receive monetary compensation where he or she has accumulated less wealth than the other spouse during the marriage. Without going into the details of the calculations, we should note that, in case of divorce, spouses have to share the profits they made during the marriage.

Second, if the will of the spouses is to have more community, different contractual agreements exist in the view of sharing as much as possible.

They can choose the conventional community property regime1. Most of the time, the purpose of this choice is to make common not only the “aquests” (acquêts), but also the movable property. They can also choose the universal community regime (régime de la communauté universelle)2. In this case, all the assets will be common including assets already owned by one of the spouses before the marriage or received through gift, or inheritance during the marriage.

In addition to the choice of matrimonial property regime, it is possible to include special clauses in the marital agreement especially in order to favor the surviving spouse in the event of the death of the other. The spouses can decide to make a specific provision and that may include a last living gift (donation entre époux / donation au dernier vivant). The purpose of this notarial act is to increase the inheritance of the spouse if the marriage is dissolved by the death of one of them. If there are no children, it is possible to give the entire estate to the spouse. And if the deceased had one or more children, three options are possible. The first one is to give a quarter of the inheritance in full ownership and three quarters in usufruct. The second possibility is to give hundred percent of the inheritance in usufruct. And the third one is to give the available portion of the inheritance in full ownership. The calculation of this available portion of the estate’s assets depends on the number of children.

If the spouses are married under a community regime or the participation in acquisitions regime, it is possible to add different clauses. They can include an unequal sharing provision clause (clause de partage inégal)3 that allows the spouses to provide for different sharing arrangements than those that would normally have been applicable to the liquidation of their matrimonial property regime. In this case, the spouses are also free to provide for a full

1  Art. 1497 et seq. of French civil code. 2  Art. 1526 et seq. of French civil code. 3  Art. 1520 of French civil code.

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attribution provision of the joint assets clause (clause d’attribution intégrale)1. In that event, the surviving spouse will receive the entire common share in full ownership or in usufruct. If the couple has common children, their inheritance rights are delayed until the death of the second parent. And if the couple has non-common children, they can initiate a special legal action to obtain the forced heirs’ part of the succession.

Finally, a special clause called “clause de préciput” can be inserted in a marital property agreement but only in case of community regime2. This clause allows the surviving spouse to take certain assets from the joint property on the death of his or her spouse, before any share, without these assets being deducted from his or her portion and without compensation. But, in all cases, the rights of the forced heirs must be respected.

3. Standard division of property in case of divorce

Prenuptial agreement cannot include provisions on financial consequences of a divorce. The matrimonial property regime of the spouses must be liquidated at the time of the divorce or possibly after the divorce, but it is not possible to anticipate this liquidation by an agreement prior to the divorce proceedings.

The liquidation rules differ according to the matrimonial property regime of the spouses.

In a community of acquisitions regime, common property is divided equally between spouses. The rule is to distribute the common assets 50/50. But prior to such division, an account of the reimbursement (récompenses) due from the community property to each spouse or by one of the spouses to the community property. There are three pools of assets: spouse number one’s pool of assets, spouse number two’s pool of assets, and the joint pool of assets. And the notary has to liquidate the joint pool of assets and determine what part of the joint assets will be distributed to each spouse after all the reimbursements.

In a separation of property regime (régime de la séparation de biens), we already have two pools of separated assets. So, each spouse will conserve the property of his or her own possessions. If the spouses had bought something together (which is often the case for the family home), the rules for sharing the ordinary indivision should be applied in order to determine the portion of the property that belongs to each spouse.

1  Art. 1524 of French civil code.

2  Art. 1515 et seq. of French civil code.

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If the spouses had chosen the participation in acquisitions regime, as previously explained, one spouse is entitled to receive monetary compensation at the time of the divorce from the other spouse. This is a kind of debt obligation that one of the spouses will have on the other because of a lesser enrichment than the other during the marriage. In this matrimonial regime, the spouses have to share the profits they made during the marriage, but the debts remain the property of each spouse. If the spouses had bought something together, they are in the same situation as spouses married under the separation of property regime1. For a long time, it was common to insert a clause in this marital property agreement to exclude professional property from the profits that the spouses had to share in case of divorce. But the French Cour de cassation2 has clarified that professional property can only be excluded if this exclusion clause was provided for in the marriage contract and if at the time of the divorce, the spouse who granted this matrimonial advantage reiterates his or her will to exclude professional property.

In the case of a conventional community property regime or universal community regime, all the common assets must be shared between the spouses following the rules explained for the liquidation of the community of acquisitions regime. The difference between these regimes is mainly the scope of the common assets, not the rules for liquidation.

4. Possibilities to modify of the division of property in case of divorce

French law provides for four cases of divorce3. In addition to divorce by mutual consent, which in most cases is carried out by a notary, there are three cases of contentious divorce that must be brought to a family court4: divorce while accepting the principle of marriage breakdown (the spouses agree on the principle of divorce but not on the consequences of divorce)5, divorce for definitive alteration of the conjugal bond (this divorce can be obtained after a certain period of de facto separation)6 and divorce on grounds of fault

1  See above previous paragraph.

2  Cass., civ. 1ère, 18 déc. 2019, pourvoi n° 18-26337 and Cass., civ. 1ère, 31 mars 2021, pourvoi n° 19-25.903.

3  Art. 229 et seq. of French civil code.

4  In french, a “juge aux affaires familiales”. 5  Article 233 et seq. of French civil code.

6  Article 237 et seq. of French civil code.

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(this divorce implies that one or both spouses have seriously or repeatedly violated the duties and obligations of the marriage)1.

When spouses divorce by mutual consent, they are free to make whatever arrangements they wish on the division of property regardless of their matrimonial regime on condition that they pay any taxes related to transfers of property from one to the other. They can decide on an unequal division in their divorce agreement even if this had not been provided for previously. It is the spouses' agreement on the division of property that counts.

In the case of contentious divorces, the spouses also have the possibility of concluding agreements that will be approved by the judge2. However, if the spouses do not reach an agreement, each of them can submit claims to the judge that may influence the division of property.

Claims often relate to family housing, particularly where one spouse still lives there with a minor child or children. If this accommodation is a joint or undivided property of the spouses, the judge may decide on a preferential attribution (attribution préférentielle) of this accommodation to one or other of the spouses3. In this case, the property of the house or flat must be attributed to this spouse in the liquidation of the matrimonial regime by the notary. The spouse will sometimes have to pay a balance to the other spouse, in particular, if the division of property of the spouses’ other assets does not allow to respect the rules for the division of property specific to the matrimonial regime under which the spouses were married. If the family home is owned by one of the spouses, the other may apply to the judge for a forced lease when a child or children usually reside with him or her4. The judge sets the amount of the rent and the duration of the lease, which may be renewed until the last common child reaches the age of majority. In this case, there is no real consequence on the division of property, the owner spouse remains the owner, but his or her powers over this building are modified until the end of the lease.

5. Specificity of the compensatory allowance under French law

Divorce puts an end to the duty of support between the spouses. Therefore, from the day the divorce is granted, it is impossible to have alimony

1  Article 242 et seq. of French civil code. 2  Art. 252 and 254 of French civil code.

3  Art. 1476 and 831-2 of French civil code. 4  Art. 285-1 of French civil code.

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between the spouses. It is only possible to have a compensatory allowance1. The purpose of the compensatory allowance is to compensate for the disparity in living standards between the spouses that will occur because of the divorce. It is an indemnity, not alimony and that will have many consequences on the regime of this allowance. In particular, the compensatory allowance must normally be paid in the form of a capital sum and not as an annual or monthly annuity. The payment of this lump sum may be divided in different ways, but the amount of the capital is determined at the time of the divorce and may not be revalued. The payment of the compensatory allowance in the form of a real life-annuity is reserved for exceptional cases when the age or state of health of the creditor does not allow him or her to support himself or herself2.

Moreover, it is forbidden to determine in advance in a marital agreement the amount of the compensatory allowance that would be due in case of divorce. There is only an attenuation, not a real exception, to this rule if a foreign element exists because of the EU regulation3. In this case, the spouses can make an agreement in order to choose the law applicable to the compensatory allowance (or to the child support). The idea is not to choose the amount, only to choose the law that will be applicable in case of divorce to these two elements.

A compensatory allowance can be obtained by one of the two spouses in all cases of divorce, divorce by mutual consent, or contentious divorce, even if it is a divorce pronounced for the fault of the claimant. In order to determine the right to compensatory allowance and the amount of compensatory allowance, it is necessary to consider the situation at the time of the divorce and to try to look to the future to see what the creditor’s situation will be after the divorce.

The Article 271 of the French Civil Code sets out the criteria for determining the right to obtain and the amount of the compensatory allowance:

A compensatory allowance must be fixed according to the needs of the spouse to whom it is paid and to the means of the other, account being taken of the situation at the time of divorce and of its evolution in a foreseeable future.

1  Art. 270 et seq. of French civil code. 2  Art. 276 of French civil code.

3  Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

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