Bankruptcy Law

Pursuant to Article L. 624-5 of the Commercial Code, the spouse of a debtor subject to safeguard procedure must establish the extent of his or her personal assets in accordance with the rules governing matrimonial property regimes, and under the conditions set forth in Articles L. 624-9 and L. 624-10, which deal with claims and restitutions. Repossessions made pursuant to this text are exercised o …

Patrimonial rights of the spouse

Pursuant to Article L. 624-5 of the Commercial Code, the spouse of a debtor subject to safeguard procedure must establish the extent of his or her personal assets in accordance with the rules governing matrimonial property regimes, and under the conditions set forth in Articles L. 624-9 and L. 624-10, which deal with claims and restitutions. Repossessions made pursuant to this text are exercised only against the debts and mortgages with which these assets are legally encumbered .

Article L. 624-8 emphasizes that the spouse of a debtor who, at the time of his or her marriage, in the year of the marriage or in the year following the marriage, was a farmer or exercised a commercial or artisanal activity or any other independent professional activity, may not bring any action in the safeguard procedure by reason of advantages made by one of the spouses to the other, in the marriage contract or during the marriage. Creditors may not, either, take advantage of benefits made by one spouse to the other.

The payment of debts for which each spouse is liable, for whatever reason, during the community, may always be pursued out of the common property pursuant to Article 1413 of the Civil Code, unless there has been fraud on the part of the debtor spouse and bad faith on the part of the creditor, except for the recompense due to the community, if any. The wages of a spouse married under the community regime constitute common property subject to seizure for the benefit of the creditors of the spouse placed in insolvency procedure, which may not be seized during the period of the seizure for the benefit of a creditor of the spouse in bonis . Nor can they be used to settle a claim that arose before the opening judgment . The payment of the debtor's claims can be made by the sale of the joint property. The sale by mutual agreement of the joint assets of spouses, married under the regime of legal community and each placed in insolvency procedure, by successive decisions, can only be authorized by the bankruptcy judge of the first procedure opened .

The debtor's spouse must be heard or duly summoned before any decision authorizing the sale of the community property. When, in the course of the procedure, the dissolution of the community existing between the debtor and his spouse becomes effective against third parties, the spouse must be heard or duly summoned before any decision authorizing the sale of the undivided property . However, the divorce of spouses, married under the regime of community of property, when it is not reported in the civil status certificates until after the opening of the insolvency procedure, can only be set up against third parties, with regard to the property of the spouses, as from that date, so that a common property, which entered into the common pledge of the creditors before becoming undivided, can be realized by the legal representative .

Finally, in accordance with Article 1443 of the Civil Code, if it appears that the interests of the other spouse are jeopardized by the disorderly conduct of his or her affairs, or by his or her maladministration or misconduct, the other spouse may sue for separation as to property. While the insolvency procedure of one spouse cannot prevent the other from applying for separation as to property, it does not in itself establish that the interests of the latter are jeopardized .

Cass. com., 16 November 2010, LawLex202100002137JBJ (LJ).

Cass. 1re civ., 10 May 2006, LawLex202100001625JBJ (LJ).

Cass. com., 16 March 2010, LawLex202100002110JBJ (LJ).

Cass. com., 27 September 2016, LawLex202100001485JBJ (LJ).

Cass. 1re civ., 19 October 2004, LawLex202100001621JBJ (LJ).

Bankruptcy Law

205. Patrimonial rights of the spouse

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Les notions juridiques connexes

205. Patrimonial rights of the spouse

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise