The Franco-German Agreement on the Optional Matrimonial Property Regime: A New Practical Tool in the Movement Towards the Harmonization of the European Substantive Rules in Family Law

Our modern society is characterized by a large number of binational marriages and divorces steadily increasing. Like this, 350,000 marriages between spouses from two different countries are celebrated, and 170,000 divorces are pronounced every year within the European Union. In case of dissolution of the couple, marital consequences are accentuated if there is a significant discrepancy of matrimonial property regime according to the spouses’ country of origin.These past years, Family law has been intensively developed within an ongoing process of European harmonization, and is essentially directed towards rules of procedures and forms of private international law, that often brings judges or practitioners, such as notaries, to apply a foreign law which they are unfamiliar, or totally ignorant. In that context, France and Germany, two pillar states of the European construction, have worked together with a common wish to increase a legal security for mixed married couples. The agreement of 4th February 20101 signed between France and Germany that has entered into force in 2013, inaugurates the first common matrimonial property regime which is composed, works and is liquidated under the same rules on each side of the Rhine. This is a major legal advance in International Family law.The scope of the Regime is large: It can be chosen by French or German citizens, and also by a spouse who has his habitual residence in France or Germany, or own a property in either of these states. It is chosen through a marriage contract that place the civil notaries in the heart of the implementation of the regime. During the marriage the regime operates as if the spouses were married under the regime of separation of property. They freely manage, use and dispose of their personal assets. However, at the time of termination of marriage, the optional matrimonial property regime owns a community spirit. Spouses’ initial and final assets are compared to fix the accrued gains of the spouses, and if one spouse exceeds the accrued gains of the other, the other spouse can claim half of the surplus as debt on the accrued gains.In a broader perspective, the common regime takes the ambition to trace a supplementary path towards the European harmonization in matter of Family law. Thus, it is possible for any European Member States to later adopt the optional matrimonial property regime by accession to the Agreement. More particularly, legal professionals have to insist on their clients on the innovations introduced by the optional regime, in both terms of differences with German and French law, as its usefulness in an international context. So, it is today professionals to clearly understand and become aware of the ins and outs of the regime.In this paper, after discussing the operating rules specific to the optional regime in part I, part II of this article addresses role, practical advantages and disadvantages of the optional regime compare to both French and German domestic law. Finally, part III considers improvements that can be made particularly thanks to the contribution of other domestic laws susceptible to join the Agreement.