Protection of Third Parties in Change of Marital Regime

Extract

[...] Finally, the Civil Code provides that third parties can oppose a change in marital regime by invoking a fraud on their rights. However, the case law strictly interprets the fraudulent nature of such a change. B. The strict interpretation of the fraudulent nature of the change in marital regime Article 1397 of the Civil Code provides that creditors can oppose a modifying agreement by invoking fraud. This is also the case for the children of the spouses. Classically, there is fraud whenever the spouses change their marital regime with knowledge that it infringes on the rights of third parties (Article 1341-2 of the Civil Code). [...]

[...] The law provides another protection mechanism, in particular for minor children: the modification must be made 'in the interest of the family' (Article 1397, paragraph 1)he of the Civil Code). As such, the notary has a real power of alert (Article 1397, paragraph 5 of the Civil Code). This has the objective of dissuading parents from harming the situation of their children, as the shadow of the judge always looms, although systematic homologation has been abolished. Thanks to this power, the notary can summon the judge if he considers that the envisaged modification is contrary to the interest of the minor child of the couple. [...]

[...] Regarding minor children, as previously seen, their protection is ensured by the notary's vigilance. However, regarding adult children, they also have a right to oppose, provided they exercise it within three months following the information received indicating the change in marital regime (Article 1397, paragraph 2 of the Civil Code). It is nonetheless essential to specify that, although this action has the merit of existing, it is rarely implemented. Adult children often do not wish to exercise it, as it would oblige their parents to seize a judge, but above all to pay a lawyer. [...]

[...] An imperfect protection of third parties in the event of a change in marital regime The protection of third parties is still insufficient today due to sometimes insufficient procedural guarantees but also due to the strict interpretation of the fraudulent nature of the change in marital regime (B.). A. Sometimes insufficient procedural guarantees One of the major drawbacks of the procedure for changing the marital regime is the condition that the modification must be made "in the interest of the family" (Article 1397, paragraph 1)"he of the Civil Code). [...]

[...] It is necessary to demonstrate an infringement of the rights of third parties caused by the change of regime, as well as the spouses' intention to cause this infringement. However, it is up to the victim of the alleged fraud to prove that the change was made in fraud of their rights (Civ. 1there April 1996, no. 94-15.298). The proof can sometimes be very complicated to provide. In the previously cited judgment, a spouse acted as a guarantor for the creditor of a company. [...]