A couple married under the French statutory community regime divorce; the effects of the divorce between the spouses are backdated to 2007. During the joint ownership that follows, the ex-husband sells alone, in 2013, the shares of two public limited companies acquired during the marriage. The ex-wife contends he sold them below their real value, and in reality to himself, and asks for the penalties for concealment (recel de communauté, the forfeiture of a spouse’s share in community assets he has hidden or diverted). The Bourges court of appeal refuses: company shares fall into the joint estate only for their value, the shareholder may dispose of them alone, and the argument of a derisory price is beside the point since the value will be entered in the assets at the date of partition. On 26 March 2025 the Cour de cassation (the French supreme court for civil matters), in a reported decision, quashed on both points: shares in a public limited company are negotiable securities, their sale after dissolution requires the consent of both spouses, and the judge had to consider whether the ex-husband had not sought “to withhold from the partition […] the difference between the apparent price and the real value of the community shares sold”. That gap is exactly what a share valuer is instructed to measure.
The facts
A judgment of 28 August 2014 pronounces the divorce of two spouses married under the community of acquisitions regime and sets 3 July 2007 as the date of effect of the divorce as regards their property. The ex-husband sues his ex-wife for the opening of the accounts, liquidation and partition. She asks for the penalties for concealment of community assets: on 26 June 2013, during the post-community joint ownership, he sold alone the shares of the companies COGEP and groupe COGEP, community assets, at a price below the real value of the shares and, she says, in reality to himself.
The Bourges court of appeal, on 5 January 2023, dismisses the claim. It holds that on dissolution of the community, the status of shareholder attached to non-negotiable shares does not fall into the joint estate, which receives only their value; that the shareholder spouse may dispose of them alone; that the shares must be entered in the assets for their value at the date of partition; and that the allegation of a sale at a derisory price by the ex-husband to himself is beside the point, since the value of the shares at the date closest to the partition will be entered in the assets.
The decision
The first civil chamber quashed (Cass. 1re civ., 26 March 2025, no. 23-14.322, reported), under articles 815-3, 1402 and 1477 of the Civil Code and L. 228-10 of the Commercial Code. “Shares in a public limited company are, in principle, negotiable securities which, acquired for consideration during the marriage, even by only one of the spouses, fall into the community”, and “the sale of community shares after the dissolution of the community requires, in principle, the consent of both spouses”. The court of appeal, which reasoned as if they were non-negotiable shares, breached those provisions.
On concealment, the Court faults the ruling for “grounds unfit to rule out the possibility that [the ex-husband] intended to withhold from the partition, by appropriating it directly or indirectly, the difference between the apparent price and the real value of the community shares sold”. Saying that the value of the shares will be entered in the assets at the date of partition does not answer the question. The case is sent back to the Orléans court of appeal.
What this changes for valuation
Shares and partnership interests are not treated alike. For the interests in a partnership or a private limited company, which are not negotiable, the case law separates the title from the value: the status of partner stays with the spouse, the joint estate receives only the value. For shares in a public limited company or a simplified joint-stock company, negotiable securities, there is no such separation: the shares themselves are community property, then jointly owned, and one ex-spouse cannot sell them alone. Before valuing, the valuer therefore identifies the corporate form and the nature of the securities, because it drives the question asked: a value to enter in the assets, or an irregular sale and concealment.
Concealment is measured by a gap. The Court names the subject matter of the concealment: “the difference between the apparent price and the real value of the community shares sold”. The valuer’s task is then to establish the real value of the shares at the date of the sale, 26 June 2013 in this case, with the accounts of the time, the usual methods for that type of company, adjusted net assets, capitalisation of earnings, comparison with transactions, and the discounts the situation justifies, minority, illiquidity, restrictions in the articles. The price paid is compared with that value; the gap, if significant, is the material clue the judge expects. The guide on the divorce of a business owner describes that work.
Two dates in the same file. The court of appeal was right on one point: in the liquidation accounts, the value of assets is set as close as possible to the partition. But that rule concerns assets still in the estate; for shares that left the joint estate through a contested sale, the real value at the date of the sale is what measures what was withheld. The report may therefore have to supply both values, at the sale and at the partition, and state clearly which question each answers. The article on the valuation date of the home after divorce deals with the second.
A sale to oneself, direct or indirect. Concealment presupposes an intention to break the equality of the partition; the Court mentions appropriation “directly or indirectly”. The valuer does not characterise the intent, but notes what makes it plausible or not: the identity and connections of the buyer, an interposed company, the payment terms, the dividends distributed since. Those elements belong in the descriptive part of the report, apart from the figures.
The penalty makes the figure decisive. The concealing spouse “is deprived of his portion in those assets”: he loses his share of the gap withheld, and in this case the ex-wife also claimed the dividends distributed since the sale. The real value established by the valuer is thus both the measure of the concealment and the basis of the penalty; it must be established with the care of a value that will be debated by both sides, and the report sets out its method and assumptions.
Company shares acquired during the marriage enter the community at their value at partition. In a reported ruling of 28 March 2018 (Cass. 1re civ., no. 17-16.198), the Court approved a court of appeal which, having found that company shares held by one spouse had been acquired during the marriage, held “that those shares would be entered as community assets at their value at the date of partition, the status of partner attached to them not falling within the post-community joint ownership”. The valuer therefore values the shares at the date closest to the partition, even if only the partner spouse may sell them.
What the valuer takes from it
- Shares in a public limited company acquired during the marriage are community property; after dissolution, their sale requires the consent of both spouses.
- Concealment is measured by the gap between the apparent price and the real value of the shares at the date of the sale.
- The valuer establishes that value with the accounts of the time, the usual methods and the justified discounts.
- The value at the date of partition answers a different question and does not dispense with the value at the sale.
- The circumstances of the sale, buyer, interposition, dividends, are described in the report, without characterising intent.
Further reading
The Business and company shares page describes the assignment, its timescale and its fee. The guide Divorce of a business owner: business and shares and the glossary entries actif net réévalué, décote de minorité and décote d’illiquidité complement this article. On the same theme: Disguised gift through a share sale: proving the impoverishment and Partition fees: gross assets include the concealment claim. The decision is available on Légifrance.
What next
Company shares sold by one spouse alone during the liquidation, and a price the other contests?
I establish the real value of the shares at the date of the sale, with the accounts, the usual methods and the justified discounts, to measure the gap with the price paid and document it before the notary or the judge.
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