Credit: who should pay the debts in the event of a divorce?

The life of a couple is a priori a matter of the heart but it is also, whether we like it or not, a matter of money. And the financial question can turn into a nightmare at the time of the breakup. But what does the law say when there are credits to be reimbursed?

Subtle settlement of accounts between spouses

Subtle settlement of accounts between spouses

If the spouses have the vocation to share the possible enrichment (real estate, savings) which may arise from their union, they must also share the debts. Whatever the matrimonial regime, they are solitary, that is to say co-responsible, of these so-called household debts, even if they have been incurred by only one of the spouses. These are ordinary everyday expenses, including food, water bills, electricity, rent, and family housing costs, children’s health costs.

However, if the expenses are manifestly excessive in relation to the couple’s lifestyle, the usefulness or uselessness of the operation, the good or bad faith of the third party contracting party, the solidarity of the spouses does not play, explains the article 220 of the civil code. Ditto for credit purchases and loans, except if they relate to coherent sums taking into account the standard of living of the household and that the expenses thus carried out are necessary for the needs of the everyday.

In other words, if you buy with a consumer credit a stove or a washing machine, your spouse is liable for the repayment of the installments, even without having the quality of the co-borrower. It is logical, these are modest sums necessary for the needs of everyday life. Conversely, if you take out a car loan to finance the high-end car of your dreams, you will not be able to ask your spouse to share the bill for the repayment of the installments. Unless he has the quality of co-borrower or is surety to guarantee your loan.

The result, when a spouse takes a loan alone which is not necessary for the needs of everyday life, he commits only his own property and his income.

Exception to solidarity

Exception to solidarity

Since the Elan law of 2018, solidarity ceases to apply to rents and charges when the spouse, notorious partner or cohabiting partner, leaves the family home due to violence exerted within the couple or on a child. The only condition: inform the lessor by registered letter, with acknowledgment of receipt, accompanied by a copy of the protection order issued by the family judge.

Limits to the protection of an economical spouse

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The rules of article 220 of the civil code aim to protect the virtuous spouse from the behavior of his over-spending spouse. However, this protection is less absolute than it seems. At issue: the legal community.

Married spouses, without having signed a marriage contract before a notary, are subject to the regime of the legal community, which is the case for the great majority of couples. This plan includes all the elements of heritage acquired for valuable consideration after the date of the marriage: car, housing, furnishings, household appliances, wages, savings …

So much for the positive side of the legal community: everything that was acquired during the marriage belongs equally to both spouses and must be split in two at the time of the divorce. Everyone keeps for themselves, on the other hand, the property acquired before the date of marriage as well as that collected during the conjugal life by gift, gift-sharing, inheritance, inheritance …

According to the civil code, the legal community is composed actively and passively. This means that it includes the assets acquired during the marriage (except inheritance and gifts) and the liabilities, i.e. all debts for which the spouses, or only one of them, are indebted.

The result, the household debts, mentioned above, and more generally all of the credits in the process of being reimbursed are included in this common pot. At the time of the divorce, these debts which you may not have always been aware of are therefore charged to the assets of the community.

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