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Правовой режим PACS во Франции в контексте теории традиционного брака Legal regime of PACS in France under traditional marriage theory
Бурмистрова Мария Олеговна
Студент 4 курса (бакалавриат) Юридический факультет МГУ им. М.В. Ломоносова Москва, Россия e-mail: m.o.burmistrova@gmail.com
Burmistrova Mariia Olegovna
4th year student (Bachelor programme) Faculty of Law Lomonosov Moscow State University Moscow, Russia e-mail: m.o.burmistrova@gmail.com
Аннотация.
Предметом настоящей статьи является правовой режим гражданского пакта солидарности (PACS) во Франции, который рассматривается через призму теории традиционного брака. Основываясь на трудах американского экономиста Г. Беккера и юриста Р. Познера, PACS исследуется автором с точки зрения экономического анализа права. Изначально PACS был представлен в качестве альтернативы традиционному браку в качестве средства обеспечения закрепления определенных прав и обязанностей между теми лицами, которые не имеют возможности или не желают вступать в брак. В заключении данной работы автор приходит к выводу, согласно которому PACS не полностью соответствует ключевым положениям теории традиционного брака, а также предлагает рекомендации французскому законодателю по совершенствованию правового регулирования в рассмотренной области семейного права.
Annotation.
The legal framework of the French civil solidarity pact (PACS) is scrutinised in this article under traditional marriage theory. Drawing upon the scholarly contributions of an American economist G. Becker and a legal scholar R. Posner, the author explores the PACS with regard to the economic analysis of law. Originally, PACS was enacted as an alternative to traditional marriage with an intention to secure certain rights and obligations for those individuals who are either unable or reluctant to enter into traditional marriage. In the conclusion of the article, the author states that PACS does not fully conform to the key principles of traditional marriage theory. Furthermore, the author offers a series of recommendations for the French legislative body to improve the legal regulation of the above-mentioned sphere of family law.
Ключевые слова: экономический анализ права, гражданский пакт солидарности, семейное право, право Франции, брачно-семейные правоотношения, брачный договор, гражданское партнерство.
Key words: economic analysis of law, civil solidarity pact, family law, French law, marriage and family legal relationships, marriage contract, civil partnership.
A PACS or a civil solidarity pact (French: pacte civil de solidarité) is a contract concluded by two adults of different or same sex to organise their common life. Although initially PACS was introduced primarily in order to offer some legal protection to same-sex couples, it has eventually proven itself to be a significant improvement and a viable alternative to both cohabitation (concubinage notoire) and traditional marriage.
Nevertheless, since marriage was allowed for the same-sex couples in 2013 [3], PACS seemed to have lost its original objective - to grant legal status and social guarantees to the homosexual individuals, serving as an intermediate contract between cohabitation and marriage. Moreover, PACS has become closer to traditional marriage over the past years. Its initial regime was gradually modified in economic-related aspects. For instance, in order to provide for immediate joint taxation (loi de finances du 30 décembre 2004), to ensure the public recognition of partnership and to protect the surviving partner (loi n°2006-728 du 23 juin 2006), and to reduce inheritance tax (loi du 21 août 2007).
Due to the constantly increasing number of similarities between these legal regimes, some scholars even refer to PACS as a "quasi-marriage" [24]. Therefore, some natural questions arise: if there is a marriage option available, why would rational players choose PACS and how would their choices benefit the society?
Despite its close resemblance to marriage, the French legislature made a decision to uphold PACS as a separate legal status. In accordance with the European Court practice, each State is competent to determine other marital statuses than marriage and the benefits flowing therefrom [8]. At the same time, entities must not be multiplied beyond necessity. To remain socially beneficial, PACS had to be tailored to existing specific needs. Thus, to replace an already achieved objective of non-discrimination, a new one had to be elaborated, and it appears to be economically-rooted.
Among the wide number of social and economic premises, on which PACS was built, the most prominent of them can be distinguished:
first of all, market factors have changed dramatically. Women have finally gained rights and managed to increase the level of their education, which, conversely, positively affected their ability to act independently and overall bargaining power on the market of marriage. The proclamation of gender equality meant that there was no need any more to grant extra protection to women by the means of traditional marriage. For instance, by default joint property regime and complicated divorce. Another example is that marriage imposes an obligation of fidelity [1, Art. 212], which in return guarantees the woman and her child the presumption of paternity - obviously, a weaker player needs such but not an equal partner;
secondly, the modes of conjugality have naturally diversified. Marriage is no longer considered to be the first and sine qua non act to start a family [4]. The moral component of family life has largely lost its importance in controlling the conduct. Even a symbolic family record book has been issued since 1974 to unmarried parents [15]. According to the ECtHR, marriage is not considered simply as a form of expression of thought, conscience or religion [9]. Instead, it is rather defined as "a corpus of rights and obligations" [7]. During the PACS discussions references were made to the Roman understanding of marriage as "a part of the duties of the citizen" [4].
By the time of the PACS enaction, the society had been waiting for a legal response to the already developed practice. It demanded for a reliable legal framework, guaranteeing greater legal certainty than cohabitation both with regard to partners and third parties. Such response was well received: PACS has been gaining popularity not only among the target homosexual group but also (and, surprisingly, mostly!) among traditional couples. Meanwhile, the number of marriages has shown a steady decline (see Appendix 1).
I assume that the PACS popularity can mainly be explained by the low cost of production in combination with fiscal benefits of joint consumption. Overall, the PACS is a flexible contract and to some degree can be adapted to the needs of the exact couple. However, it is still a marital status and is designed to ensure certain social guarantees, which cannot be withdrawn. In 2006, French legislators introduced a development under that principle. The extent of the partners' obligation to support each other materially was amended. No longer can it be determined solely by the parties in the terms of the agreement. The support is now described as the one being reasonable in the light of their financial means [1, Art. 515-4].
At the same time, the legislator did not design a reliable mechanism to ensure this incentive. Due to the obligation to support each other, the PACSed individuals lost any rights to lone parents and widows' entitlements. However, a breach of their reciprocal obligations leads to no judicial sanction, meaning that PACSed partners are in an even more vulnerable legal position than the married ones [13, p. 260].
The main question of this paper would be if the PACS falls within the framework of traditional marriage theory. Generally, we will observe two types of unions: traditional marriage and PACS, and mention cohabitation. Crucial
differences and similarities will be highlighted in order to distinguish those regimes and to explore the economic basis of creating and maintaining PACS as a separate marital status.
The PACS is regarded to be an intermediate regime between cohabitation and marriage. Unlike the former, which effect is limited to rental relations [16], the PACS brings rights and responsibilities in various fields, although fewer than marriage. The main difference between them is that the PACS deals mainly with partners, meanwhile their family life and children are influenced only indirectly.
To begin with, all the substantive conditions necessary for the validity of a contract under French law are applicable to the formation of both PACS [6] and marriage, as they are legal contracts. These include the parties' consent, their capacity and lawfulness of the content [1, Art. 1128]. These types of union share same limitations, except for one: following the death of the person who created the family link, marriage between the allied is possible [1, Art. 164]. Paradoxically, the PACS is more protective in this case, which cannot be logically and economically justified. As for other differences, registration of PACS is still less formalistic and can take place either before the registrar [2] or before a notary.
Turning to the personal effects, both spouses and partners bound by PACS bear reciprocal obligations to commit themselves to a life together and assist each other [1, Art. 515-4]. However, unlike marriage, the PACS does not impose an obligation of fidelity, which increases the cost of the parentage proof [20]. In addition to this, the conclusion of PACS invokes pecuniary obligations which were mentioned above because the partners have a duty to provide each other with material assistance and be in solidarity with certain debts concluded during and for the life together [1, Art. 515-4].
Some features of property and pecuniary obligations are of utmost economic importance for the scholars. Despite default common income taxation regime and the possibility of establishing a common assets regime under PACS, it is still mandatory to make a testimony for inheritance. Then, assets regime is separate by default, although it can be changed to common, but housing debts are always common. Furthermore, it can notably influence the players' conduct that in case of PACS divorce is relatively cheaper and can be unilateral, that is one person sends a letter to the court and notifies the other party. Finally, no alimony is provided to support the partner after a divorce (see Appendix 2).
In fact, PACS is generally seen as a less burdensome version of marriage, although such simplification is inacceptable because those two institutions were formed in different economic and social circumstances and therefore provide a solution to the extremely close but yet not the same challenges.
In order to comprehensively analyse PACS under traditional marriage theory, it is considered efficient to divide the whole problem into several sections, which are consistently explored in connection with the main topic.
The touchstone of this work is a traditional marriage theory, which was introduced by a Nobel laureate Gary Becker. He implied rational choice theory in searching for a partner and introduced the market model of marriage. Following Becker, this research will reflect an application of basic economic assumptions to the new type of civil union, to a family, which begins with PACS, to trace how behaviour maximization, equilibrium and preferences function in regard to PACS. Furthermore, in order to emphasise the importance of economic factors of PACS appearance and maintenance, Richard Posner's theory of "status based" and "contractual" relationships" [21, p. 264] could not be omitted. Obviously, no detailed analysis of a French legal institution is possible without exploring the works of French authors. Therefore, this article is based, among others, on what they (mainly M. Leturcq) wrote on PACS: its social, economic and legal context. As an extension to the above-mentioned research, attention is generously paid to French legislation in the field of family law and taxation, and the impact the latter has on civil unions was examined. In particular, by what means and to what it incites the players and what restrictions it imposes on their conduct.
Gary Becker set a basic economic framework of marriage. His two core assumptions are that each player tries to maximise his or her utility and that the market of marriage is in equilibrium [10, p. 814]. Speaking of which, a competitive
marriage market exists, since there is a demand for prospective partners of different quality and an abundant supply of the "hopefuls".
At the micro-level, Becker used a rational choice theory. Generally, individuals are driven by a natural desire to achieve the greatest benefit possible, given the limited option they have available. Their self-interests determine the choice. Described logic is applied perfectly to both marriage and PACS: rational players in a traditional cost-benefit framework enter a civil union if they expect (relying on their evaluation of the candidate's characteristics) to increase their utility.
Marriage is practically a voluntary act, which allows to apply the theory of preferences. It works in a market in marriages: men and women always compete as they seek mates. Acting within the combined framework of two mentioned theories, a person tries to find the best mate, subject to the restrictions imposed by market conditions. It is assumed that players who choose marriage and PACS target slightly different social groups, which nevertheless can overlap.
Two main assumptions explain PACS under Becker's theory:
firstly, PACS can be seen as a response to high risks of marriage, and
secondly, PACS constitutes a specific "search period" for the players.
As for the first assumption, it can be corroborated by the factors of risk. They are rooted in legal, economic and moral fields. Some of the most prominent legal and economic barriers are common debts, common property, inheritance by law, a high-cost formation and divorce, including mandatory alimony (see Appendix 2).
In addition, marriage is traditionally associated with high moral expectations, such commitment and fidelity. Therefore, PACS may be placed in a same row with a delayed marriage with a long cohabitation period or even without it; a more flexible "consensual", "common-law" or "trial" marriage [13, p.814].
PACS provide players with an opportunity to bound themselves to a certain extent while not completely exiting the market. In return, it limits social guarantees to the partners themselves and excludes their children [17, p. 81]. It is crucial to understand social and economic premises of government decision to confer legal recognition to PACS.
The government decided to grant legal certainty to a "search period" with fewer obligations. Search may take various forms, such as cohabitation, consensual unions, or simply prolonged dating. In some cases (but not necessarily!), it can also appear in a form of PACS.
This type of union is an important step beyond manage a I'essai or cohabitation. PACS introduces legal security and clarity which cohabitation lacks, along with the freedom and flexibility, which cannot be reached in marriage. It is viewed as a dynamic process, subject to review and re-negotiation due to its sensibility to the relationship progresses and partners' statuses change [13, p. 258].
One of the core principles of Becker's theory is a marriage market existence, where competition never stops. Assume that a player does not have enough information to make a rational choice to fully commit. He can use PACS as a "search period" [11, p. S22]. However, an actively searching player is risk-aversive in union-related investments. He is unlikely to invest in human capital of his partner if he exaggerates the possibility of a fault. Consequentially, this means he is also unlikely to be included in his partner's testimony. Therefore, he will only benefit from joint taxation and (though not in every case) absence of fidelity.
As a result, PACS is aimed to unite players financially and NOT by human investments. This legal regime actually may encourage a player to evaluate the cost of further search as lower than investing in PACS, which lacks many substantial "marriage" guarantees while still imposing certain obligations. However, it is constructed to appear less burdensome to incite people unite at least for financial reasons and make their de facto cohabitation visible to the government.
Becker suggested that assortative mating affects the market equilibrium. The principles of selection determine what partner to choose: how to evaluate their characteristics and how to compare them to what can be offered by the individual in search. In order to preserve the equilibrium, the characteristics of mating partners shall be balanced against each other.
Assortative mating influences the decision when to marry rationally and when to divorce. It may be easily prognosed that the likeliness of completing a higher education degree and occupying a generously-paid position correlates with an older age [22].
The theory also implies that players tend to evaluate traits differently depending on their content and influence. They usually choose partners with similar social backgrounds and physical similarities aside from their effects on wage rates. On the other hand, an opposite correlation is demonstrated between mates for wage rates [11, p. S11, S17].
The cost of search differs greatly for different traits. For instance, the education, income, intelligence, health and family background can be ascertained relatively easily, meanwhile their human capital, such as ambition and potential for growth, can only be evaluated on a subjective basis, which demands more effort [12].
It is immediately apparent from the CSF survey [23] that the "PACSed" group has certain vivid characteristics, distinguishing it from traditional spouses. Overall, civil partners are represented by well-educated and economically active persons. It is more frequently noticed in PACS unions that both partners are employed at higher-level occupations. Supporting the previous discussion, women in PACS are generally better educated at the time of entering a civil union.
Becker provided an example on marriage, which is actually illustrated by its "lighter version", PACS. When divorce becomes easier, the fraction of persons legally married may actually increase because of the effect on the entry factors, such as age. High entry requirements (seen in PACS partners) are harder to achieve, therefore increasing the average age of the couple and affecting the dissolution rates.
A conclusion can be made, that although the principle of assortative mating and the theory of preferences can be applied to both marriage and PACS, the results will notably differ. These unions are contracts in legal sense but PACS clearly shows a closer resemblance with a business model with two equal independent parties. They are more reluctant to enter a contract until they reach their full bargaining potential. Concluding a civil union would be an option to further increase their utility - not one of the first one to choose but left in a much narrower list.
Recent rise of the PACS popularity can be explained by Posner's theory of relationships. They can be either status-based or contractual.
A perfect example of status-based relationships is an initial marriage model, which can be described as non-negotiable with high exit barriers. Contractual model is a business partners model. Due to its flexibility, it can be discussed and adapted in some aspects to the demands of the parties, while it suffers less from a third-party interference. In fact, PACS was drafted with this model in mind. To illustrate this, even in case of death of the partner the rights of the surviving parties are limited compared to those of widows. They do not inherit from those who die intestate, nor is there any entitlement equivalent to the widow's pension. However, being a marital status, PACS still entails some "semi-marriage" guarantees such as possible damages pension (see Appendix 1).
A contract model (or close to it, such as PACS) allows for a no-fault unilateral divorce. Recent redistributional influences have significantly contributed to such changes: modern well-educated and employed women enjoy their own bargaining power and can provide for themselves [18]. In the past decades, more than a half of marriages have end up with divorce. But only around 40% of PACS have been dissoluted (see Appendix 3). This lifecycle is where Becker and Posner's logic overlap.
First and foremost, high exit cost is imbalanced against high marriage-related investments. Meanwhile, relatively lower PACS gains are balanced against its entry and exit costs. Moreover, it is assumed that players tend to exit more
often when a marriage mistake occurs largely due to the desacralisation of this institution. Therefore, there is no longer need for strict legal protection by means of high exit cost (difficult divorce).
Although French legislators have acknowledged the imminent risks of birth rates decrease, they clearly did not design PACS to contain incentives to have children. As was previously mentioned, PACS does not affect the status of the pacses qua parents. The couple is not bestowed a right on neither to joint adoption nor to treatment for assisted conception. Additionally, the mere conclusion of PACS does not lead to automatic adoption of the other partner's child. In absence of fidelity obligation PACS is of no help to prove parentage. Default separate assets regime is one more obstacle to the investment in child's education.
On the other hand, a situation, in which a partner may be incited to have children, can be constructed. For instance, provided that a low-income player does not benefit enough from being bound by PACS, he or she may make an attempt to obtain certain guarantees through common children. Receiving children support from a high-income player may become the only one option to balance the weaker player's efforts in that relationship because (1) inheritance is not granted and it fully depends on good relations between the partners; and (2) while assets are separate by default, there is joint liablity (solidairement) for any debts incurred by either or both of them since signing the PACS [1, Art. 515-4]. Therefore, the PACS did not address children in civil union, nor did it establish safeguards against the possibly unfair conduct of a parent who aims at partner's wealth and tries to use children in absence of other means.
Taxation is an incentive that affects couples' behavior, especially in France where the tax system is not union neutral. Indeed, in a classic cost-benefit framework, couples decide to marry if their utility when PACSed is greater than their utility when cohabiting.
France has adopted a progressive tax system, which may be burdensome but allows for joint taxation for couples, which is especially beneficial for the high-income partners. At the first glance, French legal and economic framework in field of taxation encourage players to enter into civil unions, either PACS or marriage. It did not take long before some of them began to conclude contracts without true commitment but with an intent to reduce taxes [5]. In fact, for unrelated (or non-close relatives) the transfer of the deceased's property is more beneficial under PACS than in any other forms because it occurs under a zero-tax regime (see Appendix 2).
Simultaneously, joint taxation may have a detrimental effect on individuals when they are taken separately. Social welfare benefits such as family and disability allowance, housing and unemployment benefits are reduced on the basis of the couple's joint income [13, p. 260].
Nevertheless, recent social studies of French demographists have clearly illustrated that attractive taxation for PACSed couples impacts the union rate [14]: the more beneficial the taxation to married couples, the higher the PACS rate. Fiscal incentives affect couples' decision to (1) get PACSed, (2) choose a specific date to conclude a contract, and (3) choose a specific date to break the contract [19].
However, tax incentives could be challenged where the cost of union is too high compared to the tax benefit. The elasticity of marriage to taxation would be low in this case. This turns us back to the idea that the gain from the union has to be balanced against the costs. The larger the gain is relative to costs, the larger the net gain from the union.
This principle was invoked in taxation reform, which allowed join taxation from the very beginning instead of a 3-year detrimental gap. After the 2006 reform, beneficial joint taxation and elimination of inheritance tax contributed to an increase in the number of PACS and decrease in marriages (see Appendix 2).
French legislation is structured in a way that allows to highlight both incentive and disincentive seasons. In particular, when PACS is terminated at least 2 years after it is contracted, the partners have to file three tax returns for the income earned the year of the termination: (1) one for the couple for the period from January 1st to termination day and (2) one for each partner from termination day to the end of the year. They terminate a PACS by letter, which is easy and
almost cost-free. Partners therefore enjoy an opportunity to pay less tax for the year the PACS is terminated by choosing the optimal date.
Consequently, season affects the couple's decision on the optimal date to conclude and to terminate PACS. In regard to the former situation, tax-induced PACS should be observed in the second and third quarters. Optimal termination date shall be chosen starting from the third year but not before the next tax return (not during the first two years). Those financial possibilities help a couple decide in favour of PACS to increase their utility even when they do not feel fully morally committed.
To sum up, the PACS is a type of a civil union which shares basic legal and economic features with traditional marriage. To begin with, PACS is concluded on the same competitive market as marriage, being an alternative to the latter. The mere emergence of such alternative became possible due to dramatic economic and social changes in society, which significantly increased women's bargaining powers. That was an overwhelming result of providing women with equal (or close to that) opportunities to educate themselves and work even at higher positions.
Moreover, PACS definitely falls within the rational choice theory. As clearly seen in any type of civil union, players act as they expect to increase their utility. However, rational players are often reluctant to start a family with traditional marriage due to its high risks. Primarily, these risks include high entrance and exit costs (marriage and divorce fees, common assets division, automatic inheritance by law, alimony and survivor's pension) and moral expectations (religious views; a legal duty of fidelity, which practically means an automatic proof of parentage).
Assortative factors influence market equilibrium, and standards are generally higher for a PACS than for a marriage. Previous studies have shown that PACS is a preferred choice of generally equal partners, who are well-educated and economically active. They are likely to consider PACS as a transit search period. Heavily influenced by taxation incentives, PACS is season sensitive, which is a peculiar yet important detail to its economic analysis.
Nevertheless, PACS significantly differs from a traditional marriage model. It is generally more effective as a search period due to the lower costs of conclusion and termination of contract combined with almost complete absence of moral obligations (religious views and fidelity). PACS has a larger share of fiscal benefits incentives due to the participation of more economically active players. However, PACS entails fewer incentives for union-oriented investment (common assets, joint investment in children and housing) due to higher risks of negative outcome (no inheritance by law, no alimony, no joint adoption, joint liability). Players' expectations can be drafted accurately in a contract.
Therefore, PACS does not fully fit within a traditional marriage framework. Its differences provide players with an alternative to a traditional marriage. PACS is less beneficial for the government in sense of birth rates but positive consequences (legal certainty and certain recognition of de facto relations) overweight disadvantages.
An optimal government strategy is to avoid further confusion between those two regimes and to highlight the incentives to entry PACS in order to provide legal certainty to the de facto committing couples and third parties.
Appendix 1. Marriage and PACS dynamics.
(pre-pandemic data only)
300 000 250 000 200 000 150 000 100 000 50 000 0
Appendix 2. General status comparison.
Cohabitation PACS Traditional marriage
Income taxation Separate Before 2005: 3 years separate, then common After 2005: common Common
Inheritance Testimony mandatory High tax rates: 60% (if > 1564eur) Testimony mandatory No tax Before 2007: 40% or 50% tax (if > 15000eur) Testimony unnecessary, automatic under law No tax Before 2007: low tax
Assets regime No asset sharing, unless bought together Depends on a contract Separate assets by default Common assets obtained after marriage
Debts No solidarity Solidarity only on daily life and housing debts Solidarity debts (BUT protection of housing)
Survivor's pension No No Yes
Citizenship No citizenship No citizenship (mb helpful) After 4 years
Break up Unilateral or common No cost, BUT no alimony nor damages pension Unilateral or common Low cost, by letter to the court BUT no alimony Common High divorce costs Alimony + damages pension possible
Appendix 3. Union termination in France
60 50 40 30 20 10 0
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