General

There is a particular reverence that the people of France hold for the concept of family and, by extension, the sanctity of the French family unit. As prevalent as the reverence to family has been in both a cultural and practical sense, the same can be seen in the unique laws and regulations of the French legal system.

With the advent of the French Revolution and the instatement of the new French Republic, the nation would, for the very first time, be unified under a singular, nationalised, universal system of law with the enactment of the French Civil and Penal Codes. The Civil Code itself was an incredible legal pioneer, being the first-ever recorded instance of a codified order of civil law, a legal framework with a history dating back to the foundations of the Roman Empire. In fact, in its current state, civil law has grown to become the dominant legal system in the world, used across all of continental Europe, South America, and most of East Asia.

The Civil and Penal Codes have remained principally intact in the following centuries, but with the ever-shifting cultural norms of French society, many aspects have been amended substantially to match the contemporary values. Still, there have been several certain constants of law that have withstood the passage of time.

Inspired by the principles of Aristotelian morality and tenets of Catholicism, in the late 1200s, the young Italian priest Thomas Aquinas would first conceive of the legal theory of natural law. This theory supposes the ideas of divine truths and irrefutable principles of justice, all founded on a morality that is essential to the core of humans and that transcends and supersedes all customs of the day. As expected, when speaking of universal conceptions of morality, there are also the universal and intrinsic moral evils. These are assault on persons, theft of property, murder, and other acts of maiming. All indefensible acts, and unequivocally unchristian and inhuman. Given the existing Christian inclination of Europe and the fact that many of these evils were already prosecuted to various extents, this legal theory would soon spread across the continent and would shortly become the guiding legal philosophy.

Even as France’s relationship with Christianity changed, natural law underwent an evolution in its own interpretation. With the age of enlightenment that began in the early 1700s, many intellectuals, such as the French philosopher Voltaire, who spearheaded the Enlightenment movement and the principles of secularism, began re-examining the idea of natural law. Voltaire and other Enlightenment philosophers like John Locke spoke of a new society that disjoined the Church and State, whereby religious institutions would no longer have any direct control over a nation. Surprisingly, it was the Christian theory of natural law that was championed as the foundational legal philosophy of this new secularist society. Secularists were still of the opinion that just legal determinations could only be founded through the natural law presumption of transcendent universal truths. However, the Enlightenment interpretation would differ slightly from its religious origins. Whilst universal truths and intrinsic moral wrongs were once derived from religious teachings, they would instead be determined by scientific reasoning and an examination of human psychology.

By the time the Civil and Penal Codes were conceived in Napoleonic France, the intrinsic moral evils of assault, theft, murder, and maiming were already solidified in the culture. However, somewhere along the way, the sanctity of the French family unit entered the divine level of the other such fundamental moral considerations—as essential as Thou Shalt Not Kill—as was the idea of the sanctity of family. As such, there exist several peculiar laws that were first enacted centuries prior that exist to this very day, all linked by their exceptional efforts to preserve and empower the French family unit.

PRINCIPLE OF THE HEREDITARY RESERVE

While some of the stricter familial rules originally noted in the Civil Code, such as the supremacy of the husband over wife and child, have since gone, most of the broader protections for French families have lived on. One of the most notable pieces of surviving law is the principle of hereditary reserve—the legal compulsion upon all French parents, who upon their death must give a certain fraction of their wealth to their children and the surviving partner. The basic breakdown of this reserve is that, in cases of married couples with no children, the surviving spouse must be entitled to one quarter of the estate, with three quarters as an “available quota”, essentially the leftover amount the deceased may allocate as they please. In the case of one child, the hereditary reserve increases to one half; with two children, it rises to two thirds; and for any number of kids beyond that, the reserve will account for three quarters of the deceased’s estate.

This legal principle is a totally unique piece of law that doesn’t exist in any other country. As with any nation-state that bestows on its people the right to private property, they have also collectively agreed that the state has no capacity nor duty to involve itself in the division of wealth after a passing. In these cases, there are deemed to be no ethical justifications for the state to dictate to its citizenry how they are to divide their estate and justify it as such with the concepts of individual financial freedom and free will. And so, a parent is totally free to share their assets by any metric they think of; they are free to engage in a game of family politics, show preference to one child, and disregard another; they could give their entire estate to charity or a secret lover. 

With all the risk this poses—familial abuse, mistreatment, and manipulation—French lawmakers were motivated to come to another solution. Therefore, the law of succession would be founded on the inarguable and paramount duty a parent holds to the protection and care of the family. While in theory, this duty exists across most cultures to varying degrees, the burden of this responsibility weighs far heavier in France. There have been numerous supposed reasons as to why France would be so different, but all of them are muddy as to their true influence on this law. The most commonly agreed upon reason is rather simple: that the law was made as a reflection of the culture of the day, an ideological adherence to the paramount duty. Thus, the governing French Consulate of this new Republic would argue that although the ideas of free will and financial freedom are pertinent concerns, the family estate ought to be treated as a uniquely exceptional case.

Otherwise, despite the declarations made by the French Consulate, it has been supposed that the reason for this change was in fact for pragmatic economic reasons. In the leadup to the Napoleonic takeover of France, legislators had just passed ‘The Law of 17 Nivôse’ in 1794, which abolished their old system of succession law, which stated that only the eldest-born, legitimate son could inherit the estate of the father. In its stead, the estate could be divided among all the sons (at this moment daughters were not yet eligible for property claims) and allow for wealth to be spread outwards, rather than concentrated solely in the hands of the eldest son. Without the right to property, the younger children were greatly disadvantaged, and the only means of personal success the younger sons previously could attain would be in the military or the Church. As a result, the spreading out and diversification of wealth would bear a greater national economy.

Taking a step back to examine the historical roots of the ideology of a ‘paramount duty’, this idea first took shape in the Middle Ages, as historian Philippe Ariès explained in ‘The Child and Family Life under the Ancien Régime. The concepts of families were far simpler and more rigidly defined, whereby the transmission of property and assets from generation to generation was one of the few duties a family member held. One’s estate was one of those essential issues that should not be squabbled over. Over time, this truth never wavered in the minds of the French people, no matter the external pressures. In fact, it was the context of their environment, be it the oppression and instability of the feudal monarchist Ancien Régime or the blood-soaked chaos of the Revolution, that reassured the people of the importance of one’s homestead and the preservation of security, fairness, and the family. The parental duty of care has also manifested in other laws, as demonstrated by the ‘Maintenance Obligation’. As with many other nations, French parents have an obligation to financially support their children, although this obligation applies even to a parent’s adult children, so long as they are not receiving an income, among other conditions.

The law of hereditary reserve appears reasonably favoured in modern French society. It is not some old relic that has managed to slip through the cracks of legal reform; on the contrary, recent efforts have been made to strengthen the effect of this principle. In the explosion of globalisation post-World War II and the incredible ease of movement provided by the creation of the European Union, questions were soon raised about what could be done for French families with estates that extend across multiple nations. The incompatibility of French succession law with the rest of the world has created the pretext for new familial disputes, the very issues for which French law was so keenly created to prevent. As a result, in 2021, a new amendment was made to the Civil Code so that in cases where a party has been disadvantaged by a loss of share to assets located outside of France, as a counterbalance, the disadvantaged party is entitled to an additional ‘compensatory levy’ placed upon the assets located inside France. Given the minimal case law surrounding this amendment, its efficacy is mostly untested, though many legal experts have seen it as a step in the right direction and a clear endorsement of hereditary reserve.

THE DECRIMINALISATION OF FAMILIAL THEFT

Modern legislators have done more than just reinforce existing statutes and instead have enacted wholly new laws under the banner of protecting the family unit. As an addition to the newly reformed Penal Code in 1994, a law was created that—in practically all circumstances—decriminalised the theft of property of one family member at the hands of another. For every other country, familial theft is treated as theft all the same—they wouldn’t consider blood relation as a reasonable exception to theft, or even a mitigating factor for that matter.

For Napoleonic France, a society far more prone to retributive justice and brutal punishment, the law would have been seen as unreasonably lenient, almost slavishly beholden to the idealisation of a cohesive family. In the original incarnation of the Napoleonic French Penal Code, theft of any kind would incur heavy labour at best or, at worst, death, so long as exacerbating conditions, such as the theft occurring at night, and the complementary crime of breaking and entering, were present; factors that under modern sentencing rules would only add time to one’s sentence.

In actuality, the decriminalisation of familial theft is actually more of a philosophical double-back, a return to a social mindset that preceded even the Napoleonic Era. Looking back on the later end of the Ancien Régime, familial theft existed mostly in a grey area of legality. Although by the letter of the law, it was a criminal offence, its prosecution was more akin to jaywalking than it was to common assault. The offence was hardly recognised as a crime, and so it was reluctantly enforced. As historian Julie Doyon notes, of all recorded French prison registers from the years 1694 to 1775, there were forty thousand individuals accused of theft, but only twelve would be prosecuted for familial theft. To sentence someone for an offence committed within the family was very much an uncomfortable taboo and threatened a dangerous precedent that French society would not abide by. It would take a great cultural and class revolution to shake the people from this imposition. On that point, many historians have argued that the state’s shift towards the prosecution of familial theft was intrinsically linked to a recognition of a forming ideological divide that had grown within the French household. As post-monarchist France did not live up to the lofty preconceptions of the autonomous utopia that many held, the family was soon fractured by arguments of monarchist or Napoleonic allegiance. Otherwise, the explanation could be far simpler: that the violence and anger of revolution breed a culture that would treat theft with an equally harsh resolve.

THE RIGHT TO POSTHUMOUS MARRIAGE

Looking forward to the more recent past, the year of 1959 was yet another major moment in the development of this unusual enclave of French law. As clearly evidenced, French familial law is intrinsically linked—if not outright conceived—by a response of external forces that impress upon the structural stability of the family: famine, feudalism, revolution, and economic turmoil. In spite of these forces, the family would paradoxically become more resolved, and in response, the relevant laws would be expanded upon. The situation with posthumous marriage would be the very same.

It all began outside the humble town of Malpasset in the south of France, with a series of foreboding signs that befell the local town’s dam. In the weeks prior, the local area had experienced torrential rain, and the dam rose to troubling levels. At one point, a stream of water was observed eclipsing the lip of the dam, and cracks were soon seen at the supporting concrete slab at the base of the dam. As worrying as these warnings would come to be in hindsight, at the time, the severity of the situation was mostly ignored.

On the 2nd of December 1959, the dam had exceeded the maximum level, and by noon the presiding guardian, André Ferro, requested that the dam be partially drained so as to prevent any further structural, or worse still, total collapse. This request was denied, and it would take until 6pm that night before Ferro was granted permission to let out the excess water. Once 6pm eventually rolled around, it was far too late; the volume of water had become so large that the rain was replenishing the reservoir faster than it could be emptied. Over the next three hours, the dam filled further and further beyond its maximum threshold, and the supporting concrete could no longer withstand the pressure. The reservoir burst out through the concrete wall, decimating all of the right side of the wall and most of the left. A massive 50-metre wave rushed down the Reyran Valley and down to the nearby towns of Malpasset and Fréjus. The disaster would come to be the worst civil disaster in modern French history and result in the loss of 423 lives.

Among the casualties was André Capra, a man who was soon to marry Irène Jodart, who had survived the incident. The loss of her fiancé was unbearable to Ms Jodart, who, through the support of an impassioned and enraged media—fuelled by the apparent mismanagement of the dam operators and regulators—pleaded to then-President Charles de Gaulle for the state to allow the marriage to proceed and for said marriage to be formally recognised. In response, the National Assembly would soon propose and pass Article 171 of the Civil Code, which grants the President of France, under exceptional circumstances, the authority to legally recognise a posthumous marriage. André and Irène would become the first marriage under this new law, and several other notable cases would follow, such as the marriage of Ms Étienne Cardiles and Police Officer Xavier Jugelé, the latter of whom passed away as a result of the 2017 Champs-Élysées terrorist attack.

Whilst Article 171 specifically states that posthumous marriage should not entitle the surviving partner to any financial benefits, i.e., succession claims, the symbolic value of this law cannot be understated. The law has no real practical effect, and yet, of all the peculiar laws mentioned thus far, it is quite possibly the most ideologically aligned with the sanctity of the family—a legal and practical demonstration of the idea that the commitment to family is one that transcends even death itself.