Will our marriage regime affect the French property left in our will?
Partner article: Marriage regimes matter but figuring out which country’s law applies will depend on the date you tied the knot
Marriage regimes determine what happens to property in the event of death or divorce
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Reader question: We married about 30 years ago in the Netherlands, where we lived before later moving to England. Do we need to consider our matrimonial property regime if we want a French will to cover our French property?
It is always prudent to. Such regimes do not exist in the UK but they do in many European countries and are used to determine how property is owned during the marriage and on its termination (by divorce or death).
Read more: Wills, assets: UK couples and France’s three main marriage regimes
Around 30 years ago, the rules relating to matrimonial regimes were updated so the date of your marriage is significant.
Before September 1, 1992
If prior to September 1, 1992, the law applicable is dictated by the place you lived immediately after marriage. This applies throughout your marriage, even if you move to another country.
In your case, the applicable law would be that of the Netherlands (the universal community of property, whereby each spouse is entitled to 50% of all property acquired before and during the marriage, including in sole names).
Between September 1, 1992 and January 29, 2019
If you married between September 1, 1992, and January 29, 2019, a choice of law can be made, but the default is that of the state in which both spouses establish their first habitual residence after marriage (or their common nationality, in certain circumstances).
However, for marriages occurring in this period, the applicable law can transform. This would happen immediately on your move to England if you were both British nationals, or latterly if you remained resident in England for 10 years or more.
The applicable law would become that of England and Wales, and France would assimilate this system to the French regime of séparation de biens (where each spouse holds their assets separately).
Although there is greater flexibility with séparation de biens, universal community affords more protection to the survivor.
Either way, a French will is wise to ensure clarity in the administration of your estate in France.
This reader question was answered by Antonia Ridley-Hughes of Ashtons Legal
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