Concluding a common life contract ("contrat de vie commune (CVC)") in Monaco: instructions for use

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Law no. 1.481 of 17 December 2019 on civil solidarity contracts ("contrat civil de solidarité (CCS)") introduced the contract of common life ("contrat de vie commune (CVC)") and the cohabitation contract ("contrat de cohanitation (CDC)")[1] dans le droit monégasque. into Monegasque law. Since 27 June 2020, when the law came into force [2], it has been possible to enter into a CVC in the Principality of Monaco.

Contents

Presentation

Concluding a CVC

• Who can conclude a CVC?
• Where and how do I sign a CVC?
• Registration and entry into force of the CVC

Effects of a CVC

• Contribution to current living expenses and debts
• Partners' property
• Inheritance and gifts inter vivos
• Tax matters
• Housing matters
• Social security
• Employment and labour
• Health
• Protection of vulnerable adults
• Civil procedure
• Incompatibilities applicable to companies, foundations and co-ownerships
• Criminal law and procedure

Cancelling a CVC

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♦ Presentation

The CVC refers to the agreement concluded by two adults living in a common-law relationship (referred to as partners) in order to organise their life together. The CVC registered in Monaco is not mentioned in the civil status of the partners.

The CVC has effects in terms of property (a property organisation agreement may be attached), tax, housing, social and social security, employment and labour, health, civil and civil procedure, criminal and criminal procedure.

However, the CVC cannot have the purpose or effect of affecting the rules relating to inheritance (it does not confer the status of heir designated by law), parental authority or guardianship, and it cannot be used to enforce the respective rights and duties of the spouses.

The Court of First Instance hears actions relating to the conclusion, performance, termination or nullity [3] of a CVC.

The effects in the Principality of Monaco of a contract relating to the organisation of married life registered abroad cannot exceed those of a CVC under Monegasque law [4].

♦ Concluding a CVC

The CVC is open to different-sex or same-sex couples, subject to certain conditions relating to their personal circumstances, the provision of documents, and the drafting and registration of the contract.

— Who can enter into a CVC?

The CVC is open to adults[5], subject to additional conditions for persons under guardianship[6] or curatorship[7]. [See also below "Protection of vulnerable adults"].

• None of the partners must be bound by another CVC (including by a contract organising their shared life validly concluded abroad in application of foreign law) or by marriage.
• One of the partners must be domiciled in the Principality at the time the CVC is concluded, or be a Monegasque national[8].
  Where and how do I enter into a CVC?

The CVC takes the form of a joint declaration made in person before a notary[9], of which a notarial deed is drawn up.

The declaration may be supplemented by an agreement on the organisation of assets drawn up before a notary in notarised form (without being able to rely on the respective rights and duties of the spouses, and within the limits of the legal provisions on debts and ownership of personal property, see "Effects of a CVC" below). At any time during the term of the CVC, the partners may amend their property-planning agreement, but only jointly[10]. Specific rules apply to persons under guardianship.

The following documents are required for the establishment of a CVC, and condition its validity:

• Identity document;
• Full copy of birth certificate;
• Proof of domicile;
• Certificate from the greffe général (general registry) stating that the partners are not bound by any other pre-existing civil solidarity contract;
• Declaration on honour that the partners are not bound by another civil solidarity contract validly concluded abroad in application of foreign law;
• All relevant documents enabling the notary to check that the CVC does not have the purpose or effect of undermining public policy, accepted principles of morality or the rules governing parental authority, guardianship or inheritance.

— Registration and entry into force of the CVC

• The notary registers the declaration (and, where applicable, the agreement on the organisation of assets) in the register of civil solidarity contracts held by the greffe général (general registry).
• The CVC takes effect between the partners on the day it is signed.
• The CVC may be invoked against third parties from the date of registration in the register of civil solidarity contracts.

— Effects of a CVC

The partners in a CVC have reciprocal obligations. The CVC also has an impact on tax, housing, social security, employment and work, health, civil law and civil procedure, criminal law and criminal procedure.

The conclusion of a CVC has no effect on names[11], the transmission of Monegasque nationality, filiation, the rules relating to parental authority and inheritance.

The effects in the Principality of Monaco of a contract relating to the organisation of married life registered abroad cannot exceed those of a CVC under Monegasque law.

— Contribution to current living expenses and debts

• The CVC does not create any maintenance obligations.
• The partners undertake to contribute to the day-to-day costs of living together (such as housing, furnishings and food). In principle, this contribution is proportional to their respective means, but the agreement may stipulate otherwise.
• The partners are jointly and severally liable to third parties for any debts contracted by either of them for the day-to-day needs of their life together (even after termination of the CVC). However, this joint and several liability is excluded: - for expenditure that is manifestly excessive; - in the absence of the consent of both partners, for instalment purchases (credit) and loans that do not involve modest sums necessary for the day-to-day needs of their life together. There can be no derogation from this by agreement on the organisation of assets.
• Apart from the day-to-day requirements of living together, each partner remains responsible for his or her personal debts (contracted before and during the CVC). This cannot be derogated from by means of a property-planning agreement.

— Partners' property

• Each partner retains the administration, enjoyment and free disposal of his or her personal property (acquired before and during the CVC).
• With regard to clothing, effects, linen and jewellery used for personal purposes, each partner retains exclusive ownership, without having to prove this.
• As regards other property, each partner may prove by any means that he or she has exclusive ownership. Where such proof is not provided, the property is presumed to belong to each of them equally, with each partner being the manager of this joint ownership.
• These rules may not be departed from by an agreement on the organisation of property.

— Inheritance and gifts inter vivos

• The partner is considered to be a third party in relation to the other's estate. A partner who wishes to bequeath property to his or her surviving partner must make a will.
• In the event of the death of one of the partners, and unless otherwise stipulated in a will, the surviving partner who actually occupies, as his or her main residence, the dwelling belonging to them or wholly dependent on the estate, is entitled for one year to free use of the dwelling and the furnishings included in the estate that furnish it.
• Partners may also make a gift to pass on assets during their lifetime. An inter vivos gift made to the partner may be transferred to the donor's estate[12].
• It is the notary's responsibility to inform the partners that the CVC does not confer on them the status of heir by law, as well as on the general conditions for exercising their inheritance rights, particularly in testamentary matters.

— Taxation

• Inter vivos gratuitous transfers between partners in a CVC are subject to a proportional duty of 4%. If the CVC binding the partners is terminated less than ten years after it was entered into for a reason other than the marriage of the partners or the death of one of them, the 4% proportional duty is cancelled. The partners will then be subject, retroactively, to the proportional duty of 16% (corresponding to the duty on gratuitous transfers between non-relatives).
• Transfers of ownership or usufruct of immovable or movable property, including foreign securities of any kind, made by death between partners in a CVC are, for the net share received by the beneficiary, subject to the 4% rate.

— Housing:

→ Unrestricted sector:

• In the event of the death of the leaseholder, the contract shall continue under the same conditions in favour of the surviving partner, unless the surviving partner expresses a wish to the contrary.
• The lease for the main residential property is deemed to belong to one or other of the partners, provided that they have jointly informed the owner. In the event of termination of the CVC, this right may be awarded, in consideration of the social and family interests involved, by the court hearing any dispute relating to such termination.[13]

→ Public sector:

Rental lease contract:

In the event of the death of the partner holding the rental lease, the contract continues under the same conditions in favour of his surviving partner provided that he is of Monegasque nationality, unless the latter expresses his wishes to the contrary.

• The lease of the main residential property is deemed to belong to one or other of the partners provided that they are Monegasque nationals and that they have jointly informed the owner. In the event of termination of the CVC, this right may be awarded, in consideration of the social and family interests involved, by the court hearing any dispute relating to such termination.[14]

Contract "habitation-capitalisation":

• A partner of Monegasque nationality may take out a "habitation-capitalisation" policy in accordance with Law no. 1.357 of 19 February 2009, provided that he or she and his or her partner are neither the owners in Monaco of premises used as a dwelling and corresponding to the needs of their household, nor the holders of any movable or immovable property rights that could give them enjoyment of such premises. In the event of the death of the holder of the "habitation-capitalisation" policy, his or her partner will benefit, provided they are of Monegasque nationality.
• The Monegasque partner of the holder of a "habitation-capitalisation" contract may, with the agreement of the holder and the State, become a co-owner of the said contract during its term[15]. Termination of the CVC does not terminate the "housing-capitalisation" contract held by both partners. It may be terminated by mutual agreement through waiver. In the event of disagreement, one of the partners may be awarded the benefit of the "home ownership" policy. In the event of the death of the initial subscriber or of his surviving Monegasque partner who is a co-owner of the policy, the designated beneficiary becomes the policyholder.

→ Protected sector:

• The partner of a surviving Monegasque CVC is protected under Law no. 1.235 of 28 December 2000, as amended, relating to the rental conditions of certain premises for residential use built or completed before 1 September 1947.
• In the event of the death, abandonment of domicile or permanent departure for health reasons of the holder of the lease for residential premises built or completed before 1st September 1947 subject to the provisions of Law no. 1.235 of 28 December 2000, as amended, the contract shall continue until its term in favour of the partner.

→ Liberalised sector :

Premises for residential use subject to the provisions of Law no. 887 of 25 June 1970, as amended, may be leased to the partner of an ascendant or descendant, or to the owner.

— Social security

• All of the couple's resources are taken into account to determine the amount of any benefit (e.g. unemployment benefit), allowance or other assistance that may be received by the claimant partner.
• The partner of an employee is entitled to social security allowances and benefits (sickness, maternity, accident, invalidity, family allowances) under the conditions set out in the applicable regulations.
• The partner of a self-employed person is entitled to social security benefits (sickness, accident, maternity), unless he/she can assert a personal and direct right to similar benefits from another body, by virtue of his/her residence or professional activity, or if he/she does not usually reside in Monaco or the neighbouring French department, under the conditions set by the applicable regulations.
• The partner of a State or Commune civil servant is entitled to social security allowances and benefits (sickness, maternity, accident, dependents) under the conditions set by the applicable regulations.

— Employment and labour

→ Employee:

• A partner in a CVC with the head of the company is not eligible for the status of employee representative.
• In the absence of workers of Monegasque nationality and provided that they have the necessary skills for the job, foreign partners living in a common-law union but in a CVC with a Monegasque who has retained his/her nationality, are second in the order of priority for the issue of employment authorisation.
• The funeral of an employee's partner qualifies as a "regularly authorised interruption of work" under the heading of "exceptional absences" within the meaning of Law no. 800 of 18 February 1966 governing remuneration and working conditions relating to legal public holidays, as amended.
• The surviving female partner who is a jobseeker, who is responsible for at least one child and who has been in this situation for less than five years on the date on which she registers as a jobseeker, may be entitled to the special allowance provided for by Law no. 1.113 of 27 June 1988 relating to the granting of a special allowance in favour of certain categories of jobseekers.

→ State and municipal civil servants:

• The availability on request of the civil servant can be pronounced for serious illness or accident of the partner of a CVC.
  Authorisation at the request of a civil servant in active service to perform part-time duties for a specified period, on personal grounds, is granted automatically if the request is made with a view to caring for the CVC partner suffering from a serious disability, illness or incapacity.
• The death of a retired employee in receipt of a retirement pension entitles the surviving CVC partner, and if one of them is predeceased, the child or children, to a death grant equal to half the minimum annual retirement pension for thirty years' service.

— In health matters

• When the partner of a CVC is called upon to undergo a medical act or undergo medical treatment and his or her consent is required beforehand pursuant to Law no. 454 of 30 October 2017 on consent and information in medical matters, but the partner is unable to express his or her wishes, no medical act or treatment may be carried out without the free and informed consent of the trusted support person that he or she has designated or, failing that, of his or her legal representatives, or failing that, of the other partner (except in an emergency when such consent cannot be obtained in good time by the healthcare professional).
• The CVC partner may access information concerning the health of the other partner, held in any capacity whatsoever by healthcare professionals or establishments, and obtain communication of this information, either directly or through a doctor.

— Protection of vulnerable adults

• The CVC partner of an elderly or infirm person, or a person receiving psychiatric care, is deemed to be an intermediary with regard to the prohibition on his or her attending physician and those who perform a function or hold a job in the establishment housing this person, from entering into a contract with him or her.
• Where the partner of a CVC is unable to look after his or her own interests due to an impairment of his or her mental or physical faculties, and must be continuously represented in the acts of civil life, guardianship may be opened by decision of the Court of First Instance, at the request of his or her partner. The Court may decide not to grant guardianship and to entrust the management of the vulnerable partner's assets to his or her CVC partner.
• A CVC partner who interferes in the management of the ward's assets entrusted to his or her guardian partner, becomes jointly and severally liable with the latter for the management subsequent to his or her interference.
• When a CVC partner is the subject of a placement decision due to his mental state, this decision may be revoked at the request of his partner.

— In civil proceedings

→ Judge:

• Any judge may be disqualified if his or her partner is related to one of the parties, or to the CVC partner of one of the parties, up to and including the degree of first cousin.
• A judge who is taken to task (sued for damages for deceit, fraud, misappropriation of funds in the performance of his duties, denial of justice) shall refrain from taking cognizance of the dispute and all cases concerning his CVC partner from the time the petition is served, on pain of nullity of the judgments.

→ Bailiff:

• Bailiffs may not act in proceedings concerning their CVC partners.
• If the bailiff cannot find the partner to whom the writ is addressed at his home or residence, he will deliver the copy in an envelope to his CVC partner.

→ Seizure and execution:

• The necessary sleeping quarters of the CVC partner and his ascendants and descendants living with him may not be seized for any reason whatsoever.
• The distrainor's partner may not be appointed custodian of the things seized without the consent of the distrainee, just as the distrainee's partner may not be appointed custodian without the consent of the distrainor.

— Incompatibilities applicable to companies, foundations and co-ownerships

→ Public limited companies and partnerships limited by shares:

The following persons may not be appointed as auditors to assess the value of the contribution or the cause of the special benefits:

• The CVC partner of the contributors, or at the time of incorporation of the company, of the founders, or at the time of capital increases, of the directors of a public limited company or of the managers of a limited partnership;
• The CVC partner of persons who receive, or have received for less than three years, a salary or remuneration in any form whatsoever for duties other than those of auditor, from the contributors, or at the time of incorporation of the company, from the founders, or at the time of capital increases, from the directors or managers or from the company itself or from any company in which a partner, or a director or manager, is vested with the duties of director or manager in the company.

→ Foundation:

• The CVC partner of the founder or of a director may not be chosen as auditor. If this incompatibility arises during the auditor's term of office, the auditor must immediately cease to perform his duties and inform the directors no later than fifteen days after the cause of the incompatibility arises.

→ Condominiums ("copropriété"):

• The syndic's (managing agent) CVC partner may not chair the general meeting or be delegated to vote.
• During the ten-year period provided for in article 1630 of the Civil Code (ten-year liability of architects and contractors if the building constructed at cost perishes in whole or in part due to a construction defect, even a soil defect), the term of office of the managing agent may not exceed one year if the syndic's CVC partner participated directly or indirectly, in any capacity whatsoever, even through an intermediary, in the construction of the building.
• The syndic's CVC partner, even if a co-owner, may not be a member of the conseil syndical.

— Criminal matters and criminal procedure

→ The prison sentences and fines incurred are increased in the case of the following offences committed by a CVC partner against his partner:

• Threats of murder, poisoning, assassination or assault carrying a criminal penalty;
• Knowingly and by any means whatsoever subjecting their partner to repeated actions or omissions with the purpose or effect of worsening their living conditions by impairing their physical or mental health, whether or not this results in illness or total incapacity for work;
• Violence committed against a partner that has not resulted in illness or total incapacity for work;
  Injuries, blows or other violence or assaults (with or without ambush or premeditation) committed against his/her partner resulting in illness or total incapacity for work;
• Rape committed against his/her partner.

→ It is an offence to reveal the real identity of a judicial police officer or agent who has carried out an infiltration under an assumed identity, where it causes, even indirectly, the death of his CVC partner.

→ Where a CVC partner is charged and cannot be found, the bailiff or officer responsible for serving a summons shall leave a copy at his residence with his partner.

→ Resumption of the trial in criminal and correctional matters may be requested after the death or declared absence of the convicted person, by his CVC partner.

→ Where a CVC partner who has been convicted and found innocent has died, his or her partner is entitled to claim damages, under the same conditions.

→ Constraint par corps (imprisonment for debt) may not be ordered against a CVC partner who is a debtor for the benefit of his or her partner, and this may not be exercised simultaneously against the partners even for the recovery of sums resulting from different convictions.

→ Rehabilitation sought in court by the partner of a convicted CVC, may in the event of death be followed by his or her partner.→ Est incriminée la révélation de l’identité réelle d’un officier ou agent de police judiciaire ayant effectué une infiltration sous une identité d’emprunt, lorsqu’elle cause, même indirectement, la mort de son partenaire de CVC.

Cancelling a CVC

The obligations arising from the CVC cease on the date on which the termination (on request, or in the event of marriage or death) takes effect. Termination of the CVC is enforceable against third parties from the date on which the registration formalities are completed.

Without prejudice to the mandatory rules relating to debts and property (see above), the partners shall themselves liquidate the rights and obligations resulting for them from the CVC. In the event of disagreement, the Court of First Instance has jurisdiction to rule on the property consequences of termination of the CVC, without prejudice to compensation for any damage suffered.

Specific rules for breaking the CVC apply to persons under guardianship. [See also above on the "protection of vulnerable adults"].

→ The CVC may be terminated on the initiative of a single partner or both partners. The unilateral declaration (which must be served on the other partner) or joint declaration is made in person before the notary who registered the CVC, of which an authenticated deed is drawn up. Termination of the CVC takes effect on the date of service of the unilateral declaration or on the date of the joint declaration.

→ In the event of death, the notary who registered the CVC is informed by the civil registrar who draws up the death certificate, and has the termination recorded. Termination of the CVC takes effect on the date of death. The CVC terminated by the effect of the judicially declared death remains terminated when the person declared deceased reappears.

→ In the event of marriage, the notary who registered the CVC is informed by the civil registrar who draws up the marriage certificate, and has the termination recorded. Termination of the CVC takes effect on the date of celebration of the marriage.

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NOTES:

[1] The cohabitation contract (CDC) may "be entered into by two members of the same family living together under the same roof, referred to as cohabitants" in order to organise their cohabitation, provided that: - they are of age; - neither is bound by another civil solidarity contract (or by marriage, to a third party by another civil solidarity contract validly entered into abroad in application of foreign law; - they can prove that they were living together under the same roof in the Principality prior to entering into the CDC.

[2] Article 70, alinéa 1 of Law no. 1.481. Transitional provision fixing the entry into force of Law no. 1.481 within "a period of six months from the date of its publication in the Journal de Monaco" on 27 December 2019 (JDM no. 8466).

[3] Actions for nullity of the CVC (breach of public policy, public morality, rules relating to parental authority, guardianship, inheritance, conditions relating to the personal situation of the partners, joint declaration, conditions for amending the agreement on the organisation of assets) are open to the partners, the public prosecutor or any interested party. The limitation period is five years from the day on which one of the partners, any interested person or the Public Prosecutor knew or should have known of the facts enabling him or her to bring an action for nullity.

[4] Other European countries (status: June 2020) with this type of partnership, whether mentioned in the partners' civil status or not (case of the Monegasque CVC) : Denmark, Sweden, Spain, Netherlands, Portugal, France, Belgium, United Kingdom, Germany, Finland, Czech Republic, Luxembourg, Slovenia, Ireland, Austria, Malta, Croatia, Estonia, Norway, Iceland, Switzerland, Liechtenstein, Hungary, Greece, Cyprus, Italy. In order to avoid the interested parties having to provide proof that their partnership concluded abroad is comparable to the national partnership (in particular by means of a certificate of custom), certain foreign authorities draw up a list of comparable foreign partnerships.

[5] The age of majority is set by the law of the partner's nationality.

[6] The conclusion of a CVC by a person under guardianship is subject to authorisation by the guardianship judge after hearing the future contracting parties and obtaining the opinion of the parents and relatives.

[7] Without the assistance of his or her guardian, a person of full age may not enter into (or amend) a CVC..

[8] All Monegasques are deemed to be domiciled in the Principality unless they can prove that they are domiciled in another country.

[9] The information contained in the joint declaration is: the date of the declaration; the surnames, forenames, place and date of birth of the partners; the place where they live together; the nationality of the partners; a statement that the partners wish to live together as a free union; a statement that the partners are aware of the provisions of Title V bis of the Civil Code relating to civil solidarity contracts; where applicable, a statement that there is an agreement on the organisation of assets (article 1266 of the Civil Code).

[10] The act by which the partners decide by mutual agreement to amend the agreement on the organisation of their assets is carried out as initially, in the same form before a notary, with the same registration formalities, and takes effect under the same conditions.

[11] The CVC does not affect the rules governing devolution of the family name. And a partner may not use his or her partner's surname as a nom d'usage.

[12] The donee (to whom the gift is made) brings back (fictitiously) the value of the gift. The assets thus (fictitiously) reconstituted are divided between the heirs in an equitable manner. Each heir receives his share less the gift he has already received.

[13] Inapplicable to proceedings pending on the date of entry into force of Law no. 1.481.

[14] Inapplicable to proceedings pending on the date of entry into force of Law no. 1.481.

[15] By means of an amendment to the contract.

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