When a married person wishes to sell a property, the question arises as to whether the spouse should be involved in the deed of sale. Can a married person sell a property alone?
The answer to this question will depend on the spouses' matrimonial property regime and the location of the family home.
The spouses' matrimonial property regime
Spouses can choose between three main types of matrimonial property regime: community of acquests (legal regime) , universal community and separation as to property.
These regimes proposed by the Civil Code are models and can be adapted to suit the needs of the spouses. However, for the sake of simplicity, we will study these regimes without any adjustments, as provided for in the Civil Code.
Nor will we discuss the regime of participation aux acquêts, which follows the same rules as separation as to property during the marriage (to resemble community of property on dissolution).
If no choice is made, the regime of community of acquests applies.
These regimes will determine the powers each spouse has over the property, and in particular the power to sell.
The regime of universal community of property
Under the regime of universal community of property, in principle, all property belonging to the spouses forms part of the community (with certain exceptions). The sale of any of these assets therefore requires the agreement of both spouses, regardless of the origin of the asset (gift, acquisition before marriage, etc.).
Separation as to property
Under the regime of separation as to property, there is no community. The spouses' assets are separate. All property belongs to one or other of the spouses.
This means that the spouse who is the sole owner of the property will not need the spouse's agreement to sell it. However, separation as to property does not prevent the spouses from acquiring a property together. In this case, they will each have an undivided share in the property. In this case, the joint ownership system applies, and both spouses must agree to sell the property.
It is also possible to add a partnership of acquests to separation as to property. This is a sort of "small community" to which the spouses can contribute assets. All assets forming part of this partnership of acquests will be subject to the community regime. The agreement of both spouses is required to sell a property that is part of this partnership of acquests.
The regime of community of acquests
Under the legal regime of community of acquests, a distinction is made according to the origin of the property.
If the property was received by one of the spouses as a gift (without a clause incorporating it into the community) during or before the marriage, it will belong to that spouse alone. The spouse's agreement will therefore not be required to sell it.
Similarly, if the property was acquired by one of the spouses before the marriage, he or she will remain the sole owner and will therefore be able to sell it alone.
If the property is acquired during the marriage, it automatically falls within the community and the agreement of both spouses is required to sell it. This is the case even if the property is acquired with the earnings and salary of one of the spouses or if it is acquired with his or her own liquid assets. Own liquid assets are, for example, money that one of the spouses received as a gift during the marriage or had at his or her disposal before the marriage.
However, if he uses his own cash to buy a property, he will be able to make a " declaration of reinvestment " in the deed of sale, so that the property does not fall into the community and remains the property of that spouse. The latter may then sell the property alone.
A declaration of reinvestment (or use) is a declaration by the spouse in the deed of sale that he or she is using his or her own funds (e.g. from a gift) or funds from the sale of his or her own property, and that he or she wishes the acquired property to be his or her own.
It is only by making this double declaration that the property will not become part of the community and will remain his or her own, allowing him or her to sell it on his or her own.
Very often, the own funds used are not enough to pay the full sale price, and the spouse is obliged to use joint assets to make up the balance or take out a loan. In these situations, the property may be owned by the community if the sale price and acquisition costs are paid for the most part from the spouse's own funds. The property will be separate but the community will then be entitled to a reward on dissolution of the marriage for having partly financed a separate property. On the other hand, where the property and the acquisition costs have been financed for the most part by common funds, the property will fall to the community and the spouse who used the common funds will be entitled to a reward on dissolution of the marriage.
The agreement of both spouses to the sale of a property will therefore depend on the matrimonial property regime chosen and whether the property is owned jointly or separately.
However, there is one exception where these rules no longer apply and the agreement of both spouses is obligatory, regardless of the matrimonial property regime chosen and whether the property is owned outright or in common. This exception concerns the sale of the family home.
The family home
The family home is the home that serves as the main residence for the family, i.e. both spouses and their children. Where the two spouses live separately, the family home is where one of the spouses lives with the joint children.
In the interests of protection, article 215 paragraph 3 of the Civil Code states that "the spouses may not, without each other, dispose of the rights by which the family home is ensured, nor of the furnishings with which it is furnished ". Thus, the sale of the family home must always be agreed by both spouses. This rule applies regardless of the matrimonial property regime chosen by the spouses and whether the property is owned outright or in common.
This means that one of the spouses may oppose the sale of a property owned by his or her estranged spouse, as long as the property is the family home.
If one of the spouses does not comply with this rule and sells the family home without the agreement of his or her spouse, the latter may apply to have the sale declared null and void within one year of becoming aware of the sale. However, this action for nullity may never be brought more than one year after the dissolution of the marriage.