One partner’s debt can cause joint home to be seized in France

Article written February 22, edited February 26

The debt of one partner in a couple can cause bailiffs to take jointly-owned items – including property – as measures to repay it, France's top appeal court has clarified.

In a recent case heard by the Cour de cassation, a couple saw their home repossessed by tax collectors.

This was to repay part of the man’s debts. His wife had not incurred any financial issues.

He and his wife sued the collectors, arguing that the home was in joint ownership under a 'community' marriage regime, and thus could not be repossessed - or partially repossessed - as part of the pay back process.

In addition, the wife claimed that losing the property would violate her constitutional right to decent housing, as well as the principle of personal liability, claiming she was being punished for an action that was not her own.

The court however ruled that on the contrary, in a community regime each spouse has responsibilty for the debts of the other, and the house could be sold. All items – including their home – were treated as common property and could be repossessed to pay the debt of only one partner.

Marriage contracts include liability for debts

The couple did not sign a specific contract when they got married, regarding the status of property or other items that had been, or would be, purchased before or during the marriage.

This type of marriage agreement is known as a communauté légale or communauté réduite aux acquêts (‘legal community’ although there is no direct translation in English) contract and is the standard regime for most married couples who do not sign specific contracts governing property ownership.

All property purchased as a married couple is therefore seen as being owned in common.

Read more: Married couples: Are you familiar with your French marriage regime?

The court ruled that the couple had agreed implicitly to pay each other's debts if such a situation arose.

In addition, the court confirmed through the case that repossessing joint property owned through a standard (legal community) marriage contract was constitutional, so there was no need to refer the matter to the Constitutional council.

The Cour de cassation made the ruling about the possibilty of the home being sold on January 17, 2024 and on January 31, ruled that the situation was not unconstitutional.

However, the court said a spouse would not have to bear liability in cases where there was found to have been fraudulent behaviour by the debtor (the other spouse) or bad faith from the creditor.

Apart from where a deliberate choice of marriage regime has been made via a notaire, all marriages are deemed by France to have a 'default' regime. For example, in the case of a British marriage this is often séparation de biens, where each spouse continues to own their own property individually (in the case of a house bought together this might be owned half and half, or according to the amount each paid towards the purchase).

In a previous case, however, the court ruled that séparation de biens also does not stop a jointly-owned home being sold to pay off the debt of a debtor spouse, but in this case the payment could only be taken up to the value of their share in the house.

We note that it is not common in France for people to be forced to sell their homes to pay off debts, but it could happen, for example, where one spouse has a sole trader business without any separation of personal and business assets, and the business goes bankrupt with major debts.

You can read the latest report from the court below.

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