Common use of Writing of the pact Clause in Contracts

Writing of the pact. The writing of a PACS agreement is mandatory under article 515- 3 of the Civil Code. The form in which the agreement must be drafted is still free because the article specifies that the partners can draft the agreement themselves or leave the writing to a notary. Therefore, the partners are free to choose the form of PACS because the PACS agreement can be an authentic act or a private deed. Once the writing of the agreement has been completed, the partners must do a joint statement of the agreement. Originally, the joint statement was registered only by the court’s clerk. However, a first exception was made by the Law n° 2011-331 of 28 March 2011 on modernization of judicial or legal professions and certain regulated professions. This law authorized, for PACS agreements concluded before a notary, that the latter proceeds at the same time to the statement of the agreement. This provision was valid only for agreements entered into authentic form. A second evolution took place with the Law n° 2016-1547 of November 18, 2016 on modernization of justice in the 21st century, through which all the powers of the court’s clerk was transferred to the registrar. Therefore, it is no longer necessary for future partners to travel to court. By conferring this power on the registrar, the legislator brings the PACS closer to marriage because they are both celebrated at the town hall. The law of November 18, 2016 falls within the current aim of the legislator, advocating a modernization of the justice of the 21st century. To achieve this, the legislator is trying to unblock the courts by facilitating and accelerating their work. In principle, in order to do the joint statement, the partners must appear personally before the registrar. But, exceptionally, paragraph 2 of Article 515-3 states that the registrar may move to the place of residence or domicile of one of the parties in case of serious impediments. This last notion remains vague because there is no list explaining what these serious impediments are. Thus, it is up to the judge to determine it according to the specific case, in order to know if the impediment must, or not, be considered serious. Concerning the partners concluding a PACS abroad, they must appear before the diplomatic and consular agents so that they carry out the formalities.