The principle of solidarity between spouses and cohabitants.According to article 220 of the Civil Code, the spouses are jointly and severally liable for debts contracted during the marriage. Solidarity between spouses therefore applies in the context of a mortgage .
Very often, the property acquired is the marital home . The spouses or cohabitants then take out a loan together in order to finance this purchase, they are therefore jointly and severally liable for the repayment of the credit . This loan having been taken out to finance the purchase of the family home, the spouses or cohabitants must contribute equally to the reimbursement.
In the case of a divorce or separation, the question of the uncoupling of the loan arises. Indeed, if you wish to no longer be committed to this loan, this step is important since it will prevent the lender from turning against you in the event of non-payment.
Regarding bank accounts, if you have given your spouse a power of attorney , you will have to think about terminating it. If you have a joint account, consider asking about the amount of the overdraft authorization, for example. When the separation is contentious, your spouse could empty the accounts, even withdraw more than there is in the bank. To the extent that you are jointly responsible for expenses and overdrafts, you may be required to make up the overdraft. Note also that several options are available to you, close the account, transform it into a collective account or leave full ownership to your spouse.
Don’t take any risks, our competent divorce lawyers will help you take all the necessary precautions to avoid that you find yourself in a sticky situation.
What happens in case of separation?
If only one of the spouses took out the bank loan, it is worth asking who bought the property. If the property was purchased by the sole spouse who took out the loan, he alone repays the credit and keeps the house. On the other hand, if both names appear on the deed of purchase, the spouses are jointly and severally liable for the repayment of the loan, even if the latter was contracted by only one of the two.
When the credit has been subscribed by both spouses and you have both signed, the credit commits you both. You are therefore both required to reimburse the loans contracted jointly, regardless of the legal nature of the union (marriage, cohabitation, PACS).
This reimbursement of joint debt, also called household debt, is provided for in article 220 of the Civil Code.
Arrangements can be considered within the couple as to the custody of the property or its sharing. Several solutions are possible.
In the first case, one of the spouses can be allocated housing by the judge at the start of the divorce proceedings.
Then, the spouses can decide by mutual agreement to transfer the credit to the person who keeps the property, provided that the financial resources of the spouse who keeps the property allow it. This request can be made at any time during the divorce proceedings by mutual consent .
It is also possible for the spouses to sell the property and repay their debt to the lender.
Finally, the spouses can choose to remain in joint ownership and organize the repayment of the credit as they see fit.
Have you spoken with your spouse about the future of real estate and you are not on the same wavelength? Do you both want to keep the accommodation and don’t know what to do? Our lawyers assist you throughout the procedure to help you get out of this impasse.
What happens when only one of the spouses or cohabitants has repaid the mortgage?
The time of divorce or separation is the time to take stock. It sometimes happens that one of the spouses argues that he alone assumed the settlement of the mortgage, a loan which had nevertheless been subscribed to by two.
When the spouses have not signed a marriage contract, the spouses are subject to the legal regime of community reduced to acquests. Except for special provisions in the deed of purchase, the property acquired during the marriage will be considered as belonging half to each spouse. Even if a spouse has fully paid the mortgage on the common good, he cannot claim any reward. Earnings and salaries are considered common funds.
If the spouses have adopted the regime of separation of property, and only one of the spouses has reimbursed the credit, he is also not entitled to a reward, because this reimbursement must be considered as a contribution to household expenses. However, when one of the spouses has financed the mortgage alone, and this expense seems clearly too heavy for his finances, the protection of the regime is erased. The solution is then to demonstrate that the income of the spouse who assumed the credit did not normally allow him to assume it alone.
Concerning PACS, if the PACS concluded before January 1, 2007, the distribution is 50-50. On the other hand, if it was concluded after this date, the separation of property regime applies.
A recent judgment of the first civil chamber of the Court of Cassation delivered on January 27, 2021, has clarified the situation. The High Court thus decided that the regulations relating to the acquisition of the family home can be a means of contributing to material aid and that it was therefore not possible to claim a claim against the other partner (Civ. 1re, 27 Jan. 2021, FS-P, n° 19-26.140). In this case, each partner had taken out a bank loan in his name in order to finance the joint acquisition. One of the partners had repaid both loans. According to the Court of Cassation, “the Court of Appeal, which supremely considered that the payments made by MV had been made in proportion to his contributory faculties,