CASE OF FABRIS v. FRANCE
No violation of Art. 14+P1-1
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger
5. The applicant was born in 1943 and lives in Orleans. 6. He was recognised at birth by his father, Mr F. 7. At the time of the applicant’s conception, his mother – Mrs M., née R – was married and two children had been born of that marriage: A., born in 1923, and J., born in 1941. 8. By a decree of 28 February 1967, the applicant’s mother and her husband, Mr M., were pronounced judicially separated. 9. By a deed of 24 January 1970, Mr and Mrs M. divided their property inter vivos between their two legitimate children, A. and J. Under the terms of the deed, which was signed before a notary, they retained a life interest by which the legitimate children agreed to let Mr and Mrs M. continue to enjoy possession of their property as life tenants for the rest of their lives. The deed also contained a provision for revoking the gift for the purposes of ensuring that the terms and conditions were complied with. Lastly, when the deed was signed Mr and Mrs M. declared that the two donees were their only offspring. 10. Mr M. died in 1981. 11. In a judgment of 24 November 1983 the Montpellier tribunal de grande instance declared the applicant to be the illegitimate child of Mrs M., after finding that his status of illegitimate child had been fully established. 12. The 1970 deed of inter vivos division (donation-partage) was challenged by the applicant on 26 January 1984 after it had been established in 1983 that he was Mrs M.’s son. No details have been provided regarding the outcome of that procedure. 13. The applicant’s mother died on 28 July 1994. The notary administering the estate informed the applicant by letter of 7 September 1994 that his rights were confined to the reserved portion of his mother’s estate since she had made a will bequeathing the disposable portion, that is, one quarter, to her son J. The notary told him that, as a child born of adultery, he was entitled to only half the share he would have received if he had been a legitimate child – namely, one eighth. He added that the applicant’s brother and sister, A. and J., were willing to pay him 298,311 French francs (FRF) in cash. He pointed out in that regard that in the event of the subsequent birth of a child, only a monetary abatement was possible and in no circumstances an abatement in kind. He asked the applicant to inform him whether A. and J.’s proposal was acceptable to him. 14. No agreement was reached between the three children. 15. By a writ of action dated 5 January 1998, the applicant brought proceedings in the Béziers tribunal de grande instance against the two children born of his mother’s marriage: A. and J. Relying on Article 1077-1 of the Civil Code, he sought an abatement of the inter vivos division, claiming a reserved portion of his mother’s estate equal to the share payable to his joint heirs from the assets of his mother’s estate, namely, one quarter of that estate, which was one eighth of Mr and Mrs M.’s joint estate. 16. After the Court had found against France in the case of Mazurek v. France, on 1 February 2000, France passed Law no. 2001-1135 of 3 December 2001, amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. That new Law came into force before the dispute that is the subject of the instant case was decided. It stipulated that its provisions were of immediate application to successions were already open on the date on which it came into force. Section 25(2)(2) of the Law specified that, subject to any prior agreement between the parties or final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person were applicable to successions that were already open on the date of publication of the Law in the Official Gazette of the French Republic and had not given rise to division prior to that date. 17. In his recapitulatory pleading of 20 February 2003, the applicant relied on the provisions of the Law of 3 December 2001. In his submission, that Law repealed the provisions of the Law of 3 January 1972 stipulating that the rights of heirs entitled as a result of that Law to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force. He argued that as those provisions of the Law of 1972 had been repealed, he was entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division had been signed on 24 January 1970. 18. In a judgment of 6 September 2004, the Béziers tribunal de grande instance held that the applicant was entitled to bring an action for abatement of the inter vivos division made by Mr and Mrs M. in 1970. It observed, inter alia, that section 14 of the Law of 3 January 1972, which had the effect of depriving illegitimate children of their inheritance rights where their parent had made gifts prior to the date on which that Law came into force, was contrary to Articles 8 and 14 of the Convention. The court held that that provision was also contrary to the Law of 3 December 2001, even if the latter had not expressly repealed the aforesaid section 14 of the Law of 1972. The court also found as follows: “Section 25(1) of the Law of 3 December 2001 provides that this Law is applicable to successions already open on the date on which it comes into force; subject to any prior agreement between the parties or final court decision, the provisions of this Law are applicable to successions already open on the date of publication of the Law in the French Official Gazette where these have not given rise to division prior to that date. In the present case there has not yet been division of Mrs M.’s estate; accordingly, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person will apply. Consequently, the repeal by the Law of 3 December 2001 of the provisions of the Civil Code introduced by the Law of 3 January 1972 render the new provisions incompatible with section 14 of the Law of 1972, this latter provision being already contrary to Article 14 and Article 8 of the European Convention on Human Rights. Indeed, it cannot reasonably be argued that the legislature, in enacting the Law of 3 December 2001, intended to maintain a provision contrary to the spirit and aim of the new Law. Mr Fabris must therefore be deemed entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division was signed on 21 January 1970. ... This court must therefore hold, in accordance with section 1 of the Law of 3 December 2001, that Mr Fabris has the same inheritance rights as his brother and sister with regard to his mother’s estate. ...” 19. The children born of the applicant’s mother’s marriage appealed. In a judgment of 14 February 2006, the Montpellier Court of Appeal set aside the lower court’s judgment and declared that the applicant was not entitled to bring an action for abatement of the inter vivos division made on 24 January 1970 by Mr and Mrs M. between their legitimate children. It held that such a ruling was not inconsistent with the general principle of equality of rights regardless of birth, as guaranteed by Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention. It observed that the sole purpose of section 14 of the Law of 1972 was to prohibit heirs who had acquired rights to a reserved portion of the estate under that Law – and extended by the Law of 3 December 2001 – from exercising them to the detriment of inter vivos gifts granted prior to 1 August 1972, without depriving the said heirs of their inheritance rights. It considered, above all, that there was objective and reasonable justification for section 14 of the Law of 1972 in the light of the legitimate aim pursued, namely, ensuring peaceful family relations by securing rights acquired in that context – sometimes long-standing ones – without at the same time creating an excessive imbalance between heirs. It pointed out that the provisions of the impugned section 14 were of limited scope both in terms of time and the type of voluntary disposition concerned. 20. The applicant lodged an appeal on points of law. In his opinion, which was communicated to the parties, the advocate-general at the Court of Cassation recommended dismissing the appeal. He made the following submissions to the judges of the First Civil Division of the Court of Cassation: “... The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of the Laws of 1972 and 2001. Whilst neither successions already opened, nor inter vivos gifts granted prior to the coming into force of the Law of 1972, could be challenged under that Law, the Law of 2001 allows illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that Law. That difference justifies a non-restrictive application of the provisions of the Law of 2001. Only where there has been actual division, or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened. On account of the action for an abatement, the succession already opened on the date of publication of the Law of 2001 cannot have “given rise to division” on the date of publication of that Law. I therefore find the submission that the Law of 3 December 2001 is not applicable difficult to sustain. The terms of section 14 of the Law of 3 January 1972, however, are entirely unambiguous. Heirs who have acquired rights under this Law to the reserved portion of the estate cannot exercise those rights “to the detriment of inter vivos gifts granted before the Law came into force”. Should, then, these provisions be deemed to have been tacitly repealed? Without having regard to the time factor, the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the two Laws that those governing the Law of 1972 have been tacitly repealed. Whilst the approach is different between the transitional provisions enacted in 1972 and those enacted in 2001, they do not, however, appear to me to conflict. By excluding any challenge to inter vivos gifts granted prior to the coming into force of the Law of 1972, the legislature intended to guarantee the legal security required by such gifts. There is nothing to justify calling that legal security into question in 2002, since the earlier transitional provisions complement those laid down by the Law of 2002. It is on those grounds that I invite you to dismiss the first ground of the appeal: the inter vivos gift made on 24 January 1970 cannot be called into question on account of inheritance rights arising from new rules concerning the determination of filiation. In that connection, whilst it remains debatable whether there had actually been division prior to publication of the Law of 3 December 2001, the existence of an inter vivos gift granted prior to the coming into force of the Law of 3 January 1972 is not in dispute. ...” 21. The Court of Cassation dismissed the appeal in a judgment of 14 November 2007. It found that the effect of section 25(2)(2) of the Law of 3 December 2001, in the version applicable to the facts of the present case, was that, subject to any prior agreement between the parties or a final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person were applicable only to successions that were already open on 4 December 2001 and had not given rise to division before that date. It found that as there had been division on Mrs M.’s death – that is, prior to 4 December 2001 – the above-mentioned provisions were not applicable. 22. An inter vivos division (donation-partage) is a deed by which a person divides his or her property during his lifetime among all his presumptive heirs (including, since the Law of 3 January 1972, children born of adultery). The deed must be drawn up before a notary and an inter vivos division can concern only present, not future, property. All the heirs must participate in the inter vivos division. The property being divided is valued on the date of the gift, and cannot subsequently be revalued. When making an inter vivos division, the donor determines the share of property to be distributed to his or her heirs. He or she can either divide the property into equal shares or give a larger share to one of his or her children, provided that this does not reduce the portion statutorily reserved to the heirs. Each child is entitled to a minimum share (the “reserved portion”) in his or her parents’ estate and can bring an “action for abatement” (Article 1077-1 of the Civil Code) if the division of the estate at the time of death infringes that right. The relevant provisions of the Civil Code read as follows: “Anyone shall be entitled to divide and distribute his assets and his rights among his presumptive heirs. This voluntary disposition may be made in the form of an inter vivos division or a will. It is subject to the formalities, conditions and rules prescribed for inter vivos gifts in the former case and those prescribed for wills in the latter case.” “If not all the assets or rights left by the donor or testator on the date of his death have been included in the division, those assets or rights not included shall be assigned or distributed in accordance with the law.” “An inter vivos division shall concern only present property. The gift and the division can be done by separate deeds provided that the donor signs both deeds.” 23. Law no. 71-523 of 3 July 1971 introduced Articles 1077-1 et seq. of the Civil Code, instituting the possibility of an action for abatement, and came into force on 1 January 1972. “A descendant who has not participated in the inter vivos division of the estate, or has received a lower share than his or her reserved portion, may bring an action for abatement if, when the succession is opened, there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion, regard being had to any voluntary dispositions from which he may have benefited.” “Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount, calculation of the reserved portion and reductions. An action for abatement cannot be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue. Such an action shall become time-barred five years after the death. A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion.” Section 13 of the Law of 3 July 1971 provided: “The provisions of this Law shall be directly applicable, irrespective of the date of the voluntary disposition in question, to successions opened after it comes into force. They shall also apply, subject to any contrary agreement, to estates that have not yet been liquidated, where no request for division of the estate has been lodged before 15 April 1971. ...” 24. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972 on filiation, provide: “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first-degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.” “Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.” “Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.” Section 14 of the Law of 3 January 1972 provided: “The inheritance rights instituted by the present Law or resulting from the new rules regarding determination of filiation shall not be exercised in respect of successions that have been opened before it came into force. The rights statutorily reserved to heirs that are instituted by the present Law or result from the new rules regarding determination of filiation shall not be exercised to the detriment of inter vivos gifts made before it came into force. ...” 25. On 4 December 2001 Law no. 20011135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person. Section 25 is worded as follows: “II. - The present Law shall apply to successions that are already open as of the date provided for in I, subject to the following exceptions: ... 2o Subject to any prior agreement between the parties or final court decision, the following shall apply to successions already open on the date of publication of the present Law in the Official Gazette of the French Republic and not having given rise to division prior to that date: the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person; ...” 26. According to the case-law of the Court of Cassation, an inter vivos division is a division of property in advance by which the donor’s property is divided between the joint donees and becomes a division of an inheritance on the donor’s death (Cass. Civ. I, 5 October 1994, Bull. 1994, I, no. 27). The First Civil Division of the Court of Cassation held that where an agreed division of property was challenged before a notary the inheritance was disputed and the estate could not therefore be regarded as having been liquidated (Cass. Civ. I, 7 February 1989, Bull. 1989, I, no. 66, appeal no. 86-19.537). 27. In a judgment of 15 May 2008, delivered after the judgment that is the subject of this case, the Court of Cassation held that the provisions of the Law of 3 December 2001 relating to the new inheritance rights of children born of adultery were applicable to a succession opened before 1 August 1972 where this had not given rise to a division prior to 4 December 2001. In that case, which concerned Polynesia, the succession had opened in 1962 (Cass. Civ. I, 15 May 2008, Bull. 2008, I, no. 139, appeal no. 06-19.331). The court gave the following reasons for its judgment: “Tafae X... died on 11 September 1962 leaving provision in his will for Mr Etienne F..., his son adopted under Tahitian law, as universal legatee, with a condition that he care for the two children conceived whilst he was bound by marriage to a person other than their mother: Mr Monoihere X... and Rita X..., the latter deceased on 19 April 1996, and whom he had recognised after the death of his wife. During the proceedings brought by Mr F... for recognition of his ownership of a plot of land known as “Atioro”, situated in Teahupoo, which he claimed belonged to Tafae X... and for division of that land into three shares, Mr Monoïhere X ... sought an abatement of the legacy on grounds of an infringement of the rights of the heirs entitled to a reserved portion of the estate. In dismissing Mr X’s claim, the Court of Appeal noted that the children born of adultery prior to the date on which the Law of 3 January 1972 came into force had no inheritance rights in respect of their parent’s estate, so had no legal basis for disputing the legacy left by Tafae X ... to Mr Etienne F .... In ruling thus, whereas the provisions relating to the new rights of children born of adultery were applicable to Tafae X’s estate ... as the division had not been made before 4 December 2001, the Court of Appeal, which added a condition to the Law not contained therein, infringed the above-mentioned provisions.” ...