Bankruptcy Law

Under Article L. 624-5 of the Commercial Code , the spouse of a debtor subject to a court-supervised liquidation 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 out in Articles L. 624-9 and L. 624-10, which deal with claims and restitutions. Repossessions made in application of this  …

Spousal property rights

Under Article L. 624-5 of the Commercial Code , the spouse of a debtor subject to a court-supervised liquidation 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 out in Articles L. 624-9 and L. 624-10, which deal with claims and restitutions. Repossessions made in application of this text are exercised only to the extent of the debts and mortgages with which these assets are legally encumbered .

In the same way as a debtor undergoing a court-supervised liquidation procedure, a spouse in bonis married under the community property regime is divested of his or her powers to manage community property, and cannot therefore grant a lease, even a precarious one, on community property in his or her sole name . However, unlike a debtor in court-supervised liquidation, a spouse married under the separation of property regime, in his or her capacity as co-obligor, may be the subject of an order for seizure and sale . Furthermore, while the court-supervised liquidation of a person married under the community of property regime does not affect the rights held by his or her spouse's creditors under the matrimonial property regime, the divestment of these rights prohibits them from taking legal action against community property, except in cases where the spouse's own creditors can take action themselves .

Article L. 624-8  emphasizes that a debtor's spouse who, at the time of his or her marriage, in the year of the marriage or in the following year, was a farmer or exercised a commercial, artisanal or other independent professional activity, may not bring any action in the liquidation procedure in respect of benefits granted by one of the spouses to the other, in the marriage contract or during the marriage. Nor can creditors take advantage of benefits granted by one spouse to the other.

The payment of debts owed by each spouse, for whatever reason, during the marriage, may always be pursued out of community property in application of Article 1413 of the Civil Code, unless there has been fraud on the part of the debtor spouse or bad faith on the part of the creditor, with the exception of any rewards due to the community. The salaries of a husband and wife married under community law constitute joint property subject to seizure by the insolvency procedure for the benefit of the creditors of the husband and wife placed under the insolvency procedure, and may not be seized for the duration of the procedure for the benefit of a creditor of the husband and wife in good standing . Nor can they be used to settle a debt arising prior to the court ruling . Payment of the debtor's debts may be made through the sale of joint assets. The sale by mutual agreement of the joint assets of spouses, married under the legal community regime and each placed under an insolvency procedure, by successive decisions, can only be authorized by the bankruptcy judge of the first procedure opened .

In accordance with Article R. 641-30 of the Commercial Code, “[t]he debtor's spouse must be heard or duly summoned prior to any decision ordering or authorizing the sale of community property”. The text adds that, as soon as during the procedure the dissolution of the community existing between the debtor and his spouse becomes opposable to third parties, the spouse must be heard or duly summoned before any decision ordering or authorizing the sale of the undivided property. However, the divorce of spouses married under the regime of community of property, which is not recorded in the civil status certificates until after the opening of the insolvency procedure, can only be set up against third parties, as regards the property of the spouses, from that date, so that a joint asset, which entered into the joint pledge of creditors before becoming undivided, can be realized by the liquidator .

Finally, in accordance with Article 1443 of the Civil Code, if it appears that the interests of the other spouse are jeopardized by one spouse's disorderly conduct, maladministration or misconduct, the other spouse may take legal action against the separation of property. While one spouse's insolvency procedure cannot prevent the other from applying for separation as to property, they do not in themselves establish that the latter's interests have been jeopardized .

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-14.

C. com., art. L. 624-7, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14.

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

Cass. com., 4 October 2005, LawLex202100001487JBJ (LJ).

Cass. com., 4 April 2006, LawLex202100001099JBJ (LJ).

 Cass. ass. plén., 23 December 1994, LawLex202100002138JBJ (LJ).

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).

Bankruptcy Law

845. Spousal property rights

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845. Spousal property rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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