Between the ancestral institution of marriage and the quasi-legal void of concubinage, it seemed necessary for the legislator to create, a few years ago, a third way in the center: less restrictive than marriage but more protective than mere cohabitation.
The legislator has therefore promulgated Law No. 99-944 of 15 November 1999 on the Civil Solidarity Pact (PACS), creating a Title XII which supplements Book I of the Civil Code.
It seems interesting beyond the mere presentation of the law, available on this site, to compare on four points marriage, PACS and concubinage. Thus, any person who considers the life in couple will be able to choose knowingly the legal degree of linking to its good half.
And after, do not complain that you have not been warned!
Marriage, like PACS, is a legal act, unlike cohabitation, which is a legal fact. A legal act is performed to produce a legal effect whereas a legal fact produces legal consequences that were not intended by its author.
There are many conditions to the validity of a marriage set out in articles 144 and following: minimum age (there are temperaments on this point), difference of sex, free and informed consent of both spouses, prohibition of bigamy and marriage incestuous, formalism of the marriage ceremony.
The Civil Status Officer mentions on the information relating to the marriage in the register held for this purpose in each town hall. The proof of the marriage is done by production of the marriage certificate, civil status document.
The conditions of validity of the PACS are set out in Articles 515-1 and following: majority and capacity of the partners, absence of certain family ties, drafting of an agreement (possibly in the presence of a notary) and registration of this document with the Registry of the Court of Justice. Instance, publicity of the PACS by registration in a special register, which then makes it opposable to all.
The proof of the PACS is made later by the production of the agreement referred to and dated by the clerk or by a simple certificate of registration of PACS in the register provided for this purpose.
For concubinage, a single condition for recognition, set out in article 515-8, requires a common life of a character of stability and continuity, the sex of the two concerned being indifferent.
The effects of union in the couple:
Marriage entails a series of duties between the spouses, set forth in articles 212 and following: duty of fidelity, relief and assistance, ensure the moral and material direction of the family, provide for the education of children, contribute to marriage charges, have a community of life and protect housing. The fate of the property of the spouses is regulated by the matrimonial regime applicable to them (default legal regime of the community reduced to acquests, if no marriage contract has been concluded).
According to articles 515-4 and following, the PACS obliges the partners to live together and to bring material assistance and assistance. The furniture is presumed half indivisible, unless otherwise stipulated or if their date of acquisition can not be determined. In case of abandonment of housing by the tenant, the residential lease continues with his partner.
Situation of fact, no article of the Civil Code regulates the relations between concubines. Everyone therefore bears the expenses he has incurred, even for the couple. Everyone owns the property acquired alone. Assets acquired jointly are undivided property. In case of abandonment of the housing by the tenant, the lease of dwelling continues with his concubine.
The effects of the union with regard to third parties:
With respect to third-party creditors, the marriage makes the spouses jointly liable for the debts contracted by one of them for the maintenance of the household and the education of the children and for any tax debt.
Spouses also have rights with respect to third party debtors. A person may therefore benefit from rights granted to his spouse, particularly in the field of social insurance, compensation for damage and survivor’s pension, death benefit or widow’s allowance in the event of death.
In the case of PACS, the partners are jointly and severally liable towards third parties for debts incurred by one of them for the needs of everyday life. However, this solidarity does not take place for manifestly excessive expenses (Article 515-4 paragraph 2).
Partners are treated as spouses for the right to simultaneous leave or the right to transfer to the public service. In the field of social insurance, the partner may have the status of beneficiary if it is the actual, total and permanent responsibility of the insured. On the other hand, in the event of the death of one of the partners, the other is not entitled to either the survivor’s pension or the widow’s allowance. He still has the benefit of the death benefit. In tax matters, the joint taxation of income tax is expected to begin in the third year of ACAP.
The cohabitants may be jointly and severally liable to the third party creditors for the debts contracted by one of them, in case of appearance of marriage.
In respect of third-party debtors, the rules are similar to those applicable to PACS in the field of social insurance and in the event of the death of one of the cohabitants. No favorable provisions are provided for in tax matters.
The end of the union:
The marriage ends with its annulment, the death of one of the spouses or the effect of the divorce .
The PACS ends with a joint declaration at the Registry of the Court of First Instance, will of only one of the partners, served on the other by bailiff after a period of three months, in case of marriage of one or partners or in case of deceased.
The concubinage ends by effective separation of the cohabitants. No formality is required.