Marriage contract with a notary: advantages and disadvantages

When the spouses decide to make a marriage contract, they must contact a notary for advice and to draft the deed. Other acts, carried out within the framework of marriage, also require the intervention of a notary. Before any act, the spouses must ask themselves the question of the intervention of the notary: is it judicious?

The notary is appointed by the State, he exercises his functions under the supervision of the judges. As a ministerial officer, he, therefore, has the power to authenticate the legal acts that he draws up or receives. This authentication increases the probative value of the act in question.

In addition, the notary is a legal professional. As an advisor, he, therefore, has – unlike lay partners – specialized skills in the drafting of acts. Before having recourse to the intervention of a notary, the partners must therefore find out about its cost and measure its benefit.

The intervention of the notary for marriage certificates

What are the acts for which the intervention of a notary is compulsory?

Wedding contract

The notary advises the spouses on the choice of the matrimonial regime: he explains to them the ins and outs of the various possible regimes, depending on the family and financial situation of the couple.

In the event of a conventional matrimonial regime, the notary himself draws up the bona fide marriage affidavit sample.

Donation

Spouses who wish to make donations – of goods present or due to death – for the benefit of each other necessarily require the assistance of a notary.

Indeed, a donation is a heavy act, the contract must therefore be signed in the presence of a notary. In addition, the latter informs and advises the spouses according to their situation.

Dissolution of marriage

In the event of death: like a gift, the settlement of the estate on the death of a spouse necessarily requires the intervention of a notary. In the event of a divorce: the division of the patrimony of common goods can be established by the spouses alone. However, the deed of the partition must be drawn up by a notary.

Marriage contract and divorce

This means that the patrimony of the spouses is shared between them, according to the provisions contained in the marriage contract.

If the spouses have opted for the community of property regime reduced to acquests, the common property acquired during their union is assessed and divided in half between the spouses.

If the spouses have regularized a marriage contract adopting the regime of separation of property, implying the absence of common property, each of them takes back what belongs to him.

If the spouses are contractually married under the regime of the universal community, they each have the right to half of the patrimony of this community.

The liquidation of the matrimonial regime must be carried out before a notary if one or more real estate is included in the asset to be shared. Indeed, a publication of the deed must be made on this occasion with the Land Registry Service (formerly the Mortgage Conservation).

The shared liquidation procedure includes 3 main stages:

the notary determines the patrimonial assets and the liabilities (debts) of the spouses;

he then fixes the rights and obligations of each of them, according to the provisions contained in the marriage contract;

finally, he proceeds with the attributions, the division of the goods, and the distribution of debts.

Marriage contract and inheritance

Before determining the inheritance of a married person, the notary must first liquidate the matrimonial regime, that is to say determine the share of the property entering into the estate of the deceased and that due to the surviving spouse. When the spouses got married under the regime of community of property reduced to acquests:

  • on liquidation of the matrimonial regime, each takes back his own property (those which he owned before the marriage and those received by gift or by inheritance);
  • in the deed of liquidation drawn up by the notary, all property acquired during the marriage constitutes common property and is placed in the “community assets” column;
  • the notary then proceeds to the division of these common goods, by half in current practice, except if the spouses have agreed on matrimonial advantages by marriage contract;
  • the deceased’s estate is therefore made up of all of his or her own property and half of the common property.
  • When the spouses have chosen to adopt by marriage contract the regime of separation of property on the advice of their notary:
  • in principle, no liquidation should take place since there are no common goods;
  • in practice, the spouses may have purchased joint property, either up to half each or in other proportions.
  • The notary must then liquidate the estate of the deceased, which consists of all of the latter’s own assets and his share in the undivided assets.

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