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This page is intended to keep our nonresident contacts informed of pertinent legislative developments or new legal precedents concerning international affairs which may impact their operations and require preemptive action.

Published on Wednesday 14/06/2017

A legal document drafted in one State cannot be effective in another State unless the legalisation formality is completed. It shall be noted that regarding court decisions, an enforcement formality will in principle be necessary for a judgement rendered abroad to be enforceable in another country.

 

We will successively examine the general regime of legalisation, and then its simplified version (Apostille) (I), exemptions (II) and the effects of the absence of legalisation (III).

 

 

>>Click here to read the rest of the study

 

 

See also our product information sheet on the powers of attorney issued in France for use abroad.

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Tags : International law Personal wealth Contract Sale


Published on Wednesday 03/06/2015

1) Matrimonial property regime in an international context

 

Matrimonial property regime ("régime matrimonial") is a civil law concept. It governs the property, administration and power to dispose of the property of the spouses. Its rules apply between the spouses but can also be opposed to third parties.

 

Common law and Muslim law countries ignore this concept: each spouse is deemed the owner of his own property and has the administration and the power to dispose of them.

 

We also remind that each country has its own tax and legal rules and own proper law rules, which can lead to a conflict of laws.

 

Thus, when people from different nationalities marry or when spouses with the same nationality live abroad or buy property abroad, they must be careful regarding the regime of their property.

 

 

2) Permanent matrimonial property regime or change of the matrimonial property regime

 

The possibility to change matrimonial property regime is not always granted, depending on the country.

 

In civil law countries, the change of matrimonial property regime in the said country, requires the intervention of a "notaire" ("acte notarié"), to which might add, depending on the country, a court authorization and/or some actions to inform third parties.

 

As far as international private law is concerned, the change of matrimonial property regime is subject to specific rules.

In French international private law, a distinction is made between spouses married before or after September 1st, 1992:

- For couples married before this date, the matrimonial property regime is set once and for all, as a general rule, in the state where the couple fixed its first domicile after the marriage, if they have not drafted a marriage contract,

- For couples married after the entry into force of the Hague Convention of 14 March 1978 (1 September 1992) and if they have not designated an applicable law, French citizens or residents are exposed to an eventual automatic change of the matrimonial property regime, i.e. it will be governed by the law of the country of their residence, either after 10 years when they dwell in a country other than their country of common citizenship, or right away if they move in their country of common residence.

Ex. 1: a couple of French citizens has always lived in the USA after their marriage and move back to France a few years afterwards. The spouses divorce. In this case, there are two consecutive matrimonial property regimes: the first one subject to American law from the marriage until they move back in France (property acquired during this time frame will belong to either one of the spouses according to American law), and the second one from once they move in France onwards (property acquired during this time frame will belong to either one of the spouses according to French law).

Ex. 2: A couple of married Swedish citizens decide to come to France and stay there for more than 10 years, after first living in Sweden. Here again, in case of a divorce or death of a spouse, there will be two successive matrimonial property regimes: the first one from their marriage until they move to France, and the second one from when they move to France onwards, since they stayed in France more than 10 years.

 

The proposal of European Regulation of March 16th, 2011, if it is voted as is, will put an end to the automatic change of the matrimonial property regime. Thus, the law governing the matrimonial property regime will be set once and for all unless the parties agree otherwise. The law governing the matrimonial property regime will be determined depending on objective criteria such as (i) the first residence of the spouses after the marriage, (ii) their common nationality or (iii) the law of the State with which, taking all circumstances into account, it is most closely connected.

 

 

3) Fixation of modification of the matrimonial property regime with a choice of the spouses

 

An express choice of the spouses will allow them to fix or change their matrimonial property regime.

 

French spouses who decide to marry of live abroad or the non-French citizens who decide to reside in France after their marriage must (i) either, at least designate the law that will govern their matrimonial property regime or (ii) draft a marriage contract which form and content will be governed by the designated law. The choice of the applicable law is not allowed: only the law of the citizenship or residence can be designated.

 

Non-French citizens who decide to buy real estate property in France can designate French law in order to govern only this real estate property. We would like to specify that this can be very useful and that foreign buyers tend too often to buy real property in France assuming that the inheritance will follow the rules of their country of residence.

 

French citizens or residents for more than 10 years, regardless of the date of their marriage, can designate the law applicable to their matrimonial property regime according to the same citizenship or residence criteria, which will have the advantage to apply to all their property, not only for the future but also for the past (from their marriage until the change, which is not the case for automatic change). They can make as many change as they want.

 

For more information, see the Website of the European Commission on this subject (available in 27 languages), the Convention of The Hague on matrimonial property regime (in English and in French) and the interview Bruno Bédaride gave to the Groupe Les Echos (in French).

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Tags : Expatriation International law Real estate investment


Published on Wednesday 22/10/2014

The Cour de cassation (French supreme court) recently reminded that French notaires have an obligation to inform the parties to a contract, the extent, the consequences and the risks of the contracts he drafts. In this case, the Cour de cassation sentenced a notaire who had not invited his non French-speaking client to require the assistance of an interpret during the signature of the contract (Cass. 1e civ., May 13th, 2014, n° 13-13.509).

 

When the office drafts a contract for a non French-speaking client, we make sure he has a complete understanding of the situation by:

 

-          Drafting a preliminary study from a legal and tax point of view. Clients are advised to submit this study to their councils in the country of residence in order to check the local consequences of their project,

 

-          Drafting under our liability, an explained summary of the contract which will be annexed to the contract in French. This allows to lower the translation costs while keeping the client perfectly safe, and to make sure that the client fully understands the contract he signs.

 

These documents are translated into the language chosen by the client (translations in English are done by the office; professional translators are required for other languages).

 

This is done according to a letter of engagement signed prior to the beginning of our mission.

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Tags : Apartment Family office International law Loan Personal wealth Real estate investment Rental Sale Société civile immobilière/SCI


Published on Tuesday 18/06/2013

The purchase of a real estate property in France by a non resident is an international operation, intrinsically complex. Ideally, the non resident should start with contacting a notaire in order to check the feasibility of his project and its consequences, because he does not always realize the difficulties his project might lead to.

Before the purchase, the following matters must be checked with the potential buyer: personal/family situation, finance and aim: how long will he keep the estate, aim (investment for rent or leasure home), whether the estate be passed on to his relatives or not. A form is available in English and in French.

A written study must then be drafted, to explain the potential buyer the taxation of the purchase, ownership and sale. The study must also explain the legal consequences of the purchase (in the event of a divorce of death of the owner). This study will dictate the most adequate structure according to the potential buyer's aim. A company can be set up (investment for rent), a marriage contract or a modification to the marriage contract can be signed (leasure home) and an option for the inheritance law of the country of citizenship of the buyer (if the buyer a citizen of a member state of the EU).

After the study, the preliminary agreement can be signed. The aim of the preliminary agreement is not only to bind the parties, but also to set the terms and conditions of the sale. This agreement has to be exhaustive and allow perfect knowledge of the real estate property to avoid the potential buyer unpleasant surprises after the signature of the agreement. It guarantees the signature of the deed of purchase under good conditions.

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Tags : Trust Sale Société civile immobilière/SCI International law Apartment International tax law


Published on Tuesday 18/06/2013

The sale of a real estate property has become more and more complicated because of the evolution of the law, tax law and case-law involved. The time when the buyer had to be curious is over. Indeed, the courts assign the vendor a real obligation of information regarding the real estate property's characteristic features and its eventual defaults.

 

In other words, it is highly recommended before putting the real estate property up for sale, that the vendor contacts his notaire in order to update the technical and legal documentation regarding the estate and prepare the preliminary sales and purchase agreement which has to be an exhaustive document, allowing perfect knowledge of the estate. This will avoid the buyer unpleasant surprises after the signature of the preliminary agreement. It will also allow the vendor to check the eventual real estate capital gains tax. Should there be any problems or doubt, a short note explaining them as well as the subsequent risks for the buyer and their consequences will have to be given to the potential buyers by the realtor.

 

If the real estate property is held by an entity which has its registered offices in a non cooperative state or territory or in a state which has not signed with France, a treaty with a clause of administrative assistance, a written study must be done before the preliminary agreement is signed, in order to analyse the legal and tax situation of the vendor and identify the economic beneficiary of the operation, after collection the pertinent documentation.

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Tags : Trust Sale Société civile immobilière/SCI International law International tax law Real estate investment


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The interdisciplinary expertise of the Selarl Bruno Bedaride, notaire in Paris covers the following areas: corporate law, international contracts law, legal and tax advice, advice for international transmission, real estate law, family office, real estate and company finance law. We offer more particularly our services to non residents or foreign company who wish to invest, move or create a business in France.