Separation and real estate: what are the consequences?
Whether they are married, in a civil union or cohabiting, two people in a couple constitute an estate composed of movable property and possibly real estate.
The property acquired by the couple will be qualified as common property when it has been acquired by a couple married under the regime of the reduced community of acquests or the universal community.
It will be undivided property when the property has been acquired by a couple married under the regime of separation of property or participation in acquests and by couples in a civil union.
In the presence of real estate, it will be necessary to determine your rights and to proceed with the liquidation of this (these) property (ies) and to proceed with the sharing of the community or joint possession.
Your lawyer will assist and advise you during all the stages of your separation:
The fate of real estate acquired by the couple
The fate of property acquired by the couple is the same whether they are married, in a civil union or cohabiting.
The difference between the three statuses lies in the rules defining the rights of each.
In order to fulfill their rights, three solutions are available to the couple who separates:
The sale of the property
If neither member of the separating couple wishes or is able to keep the property, it will be sold.
Buyback of the property by one of the two members of the couple
The one who wishes to keep the property will have to pay the other a balance equal to the amount of his rights.
If the property was acquired with a real estate loan, it will have to be repurchased by the person who wishes to keep the property.
Maintaining the joint possession
A couple who break up can also choose to keep the property in joint possession.
Your lawyer will be able to advise you on the best solution for the property.
The liquidation and sharing of the community or joint possession
For married couples who separate, the question of the liquidation and sharing of the common or undivided property arises during the liquidation of the matrimonial regime, which takes place:
- During the divorce procedure in case of amicable divorce,
- After the divorce in case of judicial divorce (unless an agreement has been reached. In this case, the liquidation statement will be approved by the family court judge at the same time as the divorce is pronounced).
For couples in a civil union or cohabitation who separate, this question arises as soon as the couple actually separates.
In all cases, the partition will take place at first in the framework of an amicable phase.
It is only if this phase fails that the liquidation and the sharing can be requested before the Family Court.
The obligatory amicable phase
The liquidation and sharing of a property must be formalized by a deed of sharing.
This phase is carried out in the presence of a notary who will attempt to carry out the liquidation and partition operations.
Your lawyer will assist you throughout this phase to ensure that your rights are respected.
Referral to the Family Court in case of disagreement
If the amicable phase fails, your lawyer will refer the matter to the Family Court to order the liquidation and partition of the community or joint possession by means of a liquidation-partition writ.
The rights of each party will be determined by the Judge.
A notary may be appointed.
The forced sale of the property may also be ordered.
The liquidation and partition operations
This involves determining the rights of the parties by establishing the accounts between them.
The accounts between the parties will be made by determining the following elements:
- Recoveries and rewards for community matrimonial regimes,
- The claims and debts of each party to the joint possession,
- The value of the active mass,
- The value of the passive estate,
- The claims between spouses or between partners or cohabitees,
- The establishment of the final account.
Your lawyer will draw up an audit to determine your rights.
Our lawyers are at your disposal to answer all your questions and to advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Family Matters Department
09 72 34 24 72