Study guide: Law of Persons

📋 Course Outline

1. Objective and Subjective Rights
2. Legal Personality and Legal Subjects
3. Acquiring Personality at Birth
4. Embryos and Unborn Children
5. Certain Death and the Corpse
6. Uncertain Death
7. Family Name and Filiation
8. Changing the Family Name
9. Protecting and Using the Name
10. The Given Name
11. Use of the Name Through Marriage
12. Use of the Name Through Filiation
13. Attribution of the First Name
14. Changing the First Name
15. Sex Assignment at Birth
16. Legal Change of Sex

📅 Key Dates

1. 1848Slavery was abolished under Bonaparte after enslaved people had been treated in Roman law as things owned by their master rather than autonomous legal subjects.
2. 16 December 1975The Court of Cassation refused legal recognition of a change of sex
3. 25 March 1992The European Court of Human Rights held that France’s refusal violated the right to private life under Article 8
4. 11 December 1992The plenary assembly accepted legal change of sex under strict medical and surgical conditions
5. 8 January 1993The law established parents’ freedom to choose their child’s first name
6. 18 November 2016The law codified the procedure and relaxed and demedicalized the substantive conditions
7. 6 December 2021A family name may be given to a child born without life even when the child’s filiation has not been established.
8. 2 March 2022The simplified family-name procedure was introduced and allows each major person to request one change through the civil-status officer.
9. 2 March 2022The law created Article 311-24-2 and modified the rules on use of the family name

📖 1. Objective and Subjective Rights

🔑 Key Concepts & Definitions

• Civil law: The common law applicable to all private persons, except where a special branch such as commercial or employment law governs the relationship.
• Law of persons: The branch of civil law concerned with persons in the legal sense, including their identification and the protection of vulnerable persons such as minors and certain adults.

📝 Essential Points

📌 Objective law is the body of compulsory rules governing relationships between people in society, whereas subjective rights are prerogatives recognized to individuals or groups that may be invoked against others with public-authority protection.

📌 Public law governs relationships involving public persons and the organization of the State and public authorities, whereas private law governs relationships between private persons, including individuals and legal entities.

💡 Memory Hook

Objective law governs society; subjective rights empower their holders.

📖 2. Legal Personality and Legal Subjects

🔑 Key Concepts & Definitions

• Legal personality: The capacity to hold rights and be bound by obligations, allowing a person to act legally personally or through representation.

★ Must-know

📌 A legal subject holds rights and obligations, whereas a legal object is something over which rights may be exercised; animals and things are legal objects rather than legal subjects.

📌 A natural person is a human being, whereas a legal person is a group of individuals recognized by law as having a personality distinct from that of its members, such as a company or association.

Further detail

• Article 515-14 of the Civil Code has recognized since 2015 that animals are living beings endowed with sensitivity, although they remain legally distinct from persons.

💡 Memory Hook

A person is a legal subject; animals and things are legal objects.

📖 3. Acquiring Personality at Birth

★ Must-know

• A birth must be declared at the town hall within five days so that the civil-status officer can draw up a birth certificate identifying the child’s name, given name, sex, date of birth and parents.

📌 Legal personality is acquired only when the child is born alive and viable, meaning that the child breathes and has the organs necessary for life.

Further detail

• The World Health Organization criterion mentioned in the course uses 22 weeks of pregnancy for medical purposes, but this viability threshold is not fixed by French law.

💡 Memory Hook

Birth declaration → living birth → viable birth → legal personality.

📖 4. Embryos and Unborn Children

📝 Essential Points

• Under Article 79-1 of the Civil Code, a child born alive and viable but dying before birth registration receives both a birth certificate and a death certificate upon presentation of a medical certificate.

• When a child is not born alive and viable, no legal personality is acquired, but Article 79-1 allows the parents to request an act of a child born without life, a given name and a family record book if a medical certificate of childbirth exists.

• The infans conceptus principle treats a child merely conceived as already born whenever this benefits the child, provided the child is later born alive and viable and was conceived when the relevant event occurred.

💡 Memory Hook

Conception plus the child’s interest → retroactive legal protection.

📖 5. Certain Death and the Corpse

★ Must-know

📌 Legal personality ends with biological death, because civil death has no longer existed since 1804.

• The clinical criteria are: total absence of consciousness and spontaneous motor activity, abolition of all brain-stem reflexes, absence of spontaneous breathing

📌 The civil-status officer draws up a death certificate and records the death on the person’s birth certificate, producing consequences such as opening the succession and ending the marriage.

📌 The respect owed to the human body continues after death, and the remains and ashes must be treated with respect, dignity and decency under Article 16-1-1 of the Civil Code.

Further detail

📌 The authorized burial methods are burial and cremation, which must generally take place between 24 hours and 14 days after death in France, excluding Sundays and public holidays.

💡 Memory Hook

Death ends legal personality, but respect for the corpse continues.

📖 6. Uncertain Death

📝 Essential Points

📌 Absence is a situation in which a person has stopped appearing at their domicile or residence and has stopped giving news, whereas disappearance presupposes circumstances putting the person’s life in danger and an unrecovered body.

• During the presumption-of-absence stage, the guardianship judge may organize representation and management of the absent person’s property when no sufficient power of attorney or marital powers exist.

• Absence may be declared after ten years from the judgment establishing presumed absence, or after twenty years from the last news when no such judgment exists.

• The declaratory judgment of absence is equivalent to a death certificate, opens the succession, ends the measures for managing the absent person’s property and allows the spouse to remarry.

• A disappearance may be judicially declared when a French person disappears in circumstances endangering life and the body cannot be found, and the judgment has the effects of a death certificate.

💡 Memory Hook

Absence presumes life; disappearance presumes death.

📖 7. Family Name and Filiation

🔑 Key Concepts & Definitions

• Filiation: The legal relationship linking a child to one or more parents.

★ Must-know

• Maternal filiation is established by identifying the mother in the child’s birth certificate, whereas paternal filiation is established by the presumption of paternity within marriage or by recognition outside marriage.

• When filiation is established with both parents, the parents may choose the father’s name, the mother’s name, or both names in the order they select, subject to a maximum of two family names.

• Without a joint declaration, the child takes the name of the parent whose filiation was established first, or the father’s name when both filiations were established simultaneously; parental disagreement results in the two names in alphabetical order.

Further detail

📌 When filiation is established with only one parent, the child takes that parent’s name, but a later joint declaration may substitute or add the second parent’s name during minority.

📌 When no filiation is established, the civil-status officer gives the child three given names, with the third serving as the family name.

💡 Memory Hook

Filiation → parental choice → subsidiary rule → assigned name.

📖 8. Changing the Family Name

★ Must-know

📌 A family-name change by decree requires a legitimate interest and is decided by the Minister of Justice, whereas the simplified procedure allows a major to choose the untransmitted parent’s name without proving a legitimate interest.

Further detail

📌 A legitimate interest may include a ridiculous name, an affective reason, or avoiding the extinction of a name borne by an ancestor or collateral relative up to the fourth degree.

💡 Memory Hook

Decree requires a legitimate interest; simplified change does not.

📖 9. Protecting and Using the Name

★ Must-know

• Usurpation of another person’s name may be challenged under civil liability and privacy rules when using the name in civil life creates an infringement.

• The family name is compulsory and transmissible, whereas the usage name is optional and cannot be transmitted.

• A spouse may use the other spouse’s family name by substitution or addition during marriage, but divorce normally ends that use unless the other spouse agrees or a judge authorizes it for a particular interest.

Further detail

📌 Use of a name in a literary, artistic or commercial activity may be challenged when it creates a risk of confusion and harms the person’s reputation or an existing commercial name.

📌 A major person may use the name of the parent whose name was not transmitted by addition, substitution or inversion, while a parent exercising parental authority may implement this possibility for a minor subject to judicial review in case of disagreement.

💡 Memory Hook

The family name is compulsory and transmissible; the usage name is optional and non-transmissible.

📖 10. The Given Name

🔑 Key Concepts & Definitions

• Given name: Distinguishes a person within their family and is assigned at birth in the birth certificate.

📝 Essential Points

📌 A person may change their given name only within the legal framework and through an amendment of the birth certificate.

📖 11. Use of the Name Through Marriage

📝 Essential Points

• Since the law of 17 May 2013 opened marriage to same-sex couples, either spouse may use the other spouse’s name under Article 225-1 of the Civil Code.

• Following divorce, each spouse normally loses the right to use the other spouse’s name under Article 264 of the Civil Code.

• After divorce, a spouse may retain use of the other spouse’s name with that spouse’s agreement or with judicial authorization when a particular interest for the spouse or the children is established.

💡 Memory Hook

Marriage permits use; divorce removes it, unless an exception applies.

📖 12. Use of the Name Through Filiation

📝 Essential Points

• An adult may use the other parent’s name by:
  • addition
  • substitution
  • inversion

📌 For a minor, the possibility of using the other parent’s name is implemented by the parents exercising parental authority, or by the parent who exercises it alone.

📌 When parental authority is joint, the parent who did not transmit their name may add it to the minor’s name without prior agreement from the other parent, provided that the other parent is informed in due time and may refer the disagreement to the family judge.

💡 Memory Hook

Addition, substitution, or inversion of the other parent’s name.

📖 13. Attribution of the First Name

🔑 Key Concepts & Definitions

• First name: distinguishes a person within their family and is attributed at birth like the family name

★ Must-know

📌 If the civil-status officer considers a chosen first name, alone or combined with another, contrary to the child’s interest, the officer must notify the public prosecutor, who may refer the matter to the family judge.

Further detail

📌 If the family judge considers the first name contrary to the child’s interest, the judge orders its removal from the civil-status registers and may assign another first name if the parents do not make a compliant choice.

📌 In the absence of established filiation, the woman who gave birth may state the first names she wants attributed to the child; otherwise, the civil-status officer chooses three first names, with the last becoming the family name.

💡 Memory Hook

Parents choose freely, but the child’s interest limits that freedom.

📖 14. Changing the First Name

★ Must-know

• Since the law of 18 November 2016, an application to change a first name is submitted to the civil-status officer at the town hall rather than directly to a court.

• The applicant must establish a legitimate interest in changing the first name, and merely disliking the existing first name is insufficient.

• If the civil-status officer considers that there is no legitimate interest or that the change harms the child’s interest or third-party rights, the officer refers the matter to the public prosecutor, whose refusal may be challenged before the family judge.

Further detail

• Examples of legitimate interest include:
  • prolonged use of a first name
  • integration into French society
  • a ridiculous first name
  • return to an original first name
  • transsexuality

📌 For a minor, the legal representatives submit the application to the civil-status officer, and both parents must agree when they both hold parental responsibility; disagreement may be referred to the family judge.

💡 Memory Hook

Town hall request → prosecutor review → family judge in case of dispute.

📖 15. Sex Assignment at Birth

🔑 Key Concepts & Definitions

• Sex at birth: must mention the child’s sex under Article 57 of the Civil Code

★ Must-know

• French civil law implicitly follows a binary model of sex, reflected in references to men and women, fathers and mothers, and individuals of either sex.

📌 When it is medically impossible to determine the child’s sex on the date of establishing the birth record, the civil-status officer may be authorized by the public prosecutor to omit the sex temporarily, but the medically established sex must be entered within a period not exceeding three months from the birth declaration.

📌 French law does not permit an indication of a sex other than male or female on civil-status records, including a neutral or intersex designation, according to the Court of Cassation on 4 May 2017.

Further detail

• In Y v France, the European Court of Human Rights held that refusing to replace a male entry with a neutral or intersex entry did not violate Article 8 of the European Convention on Human Rights.

💡 Memory Hook

Private identity versus the public coherence of civil status.

📖 16. Legal Change of Sex

★ Must-know

📌 Under Article 61-5 of the Civil Code, an adult or emancipated minor may obtain a change of the sex entry by demonstrating through a sufficient body of facts that the recorded sex does not correspond to the sex in which the person presents and is known.

📌 Under Article 61-6, medical treatment, surgery, or sterilization cannot alone justify refusing a request to change the sex entry.

• The applicant applies to the judicial court, which verifies the substantive conditions and the applicant’s free and informed consent before ordering the change of the sex entry and, where applicable, the first names in civil-status records.

Further detail

• Relevant facts may include: public presentation as the claimed sex, recognition by friends or professional contacts, a corresponding first-name change

💡 Memory Hook

Refusal → strict medical conditions → social proof without medical requirements.

📊 Synthesis Tables

Absence and disappearance

Family name and usage name