On divorce, a spouse finds that common funds paid for a property that went neither into the community nor into the other spouse’s estate, but into that of a company owned by the children. Does the other spouse owe récompense (compensation between the community and a spouse) to the community? The decision of the First Civil Chamber of the Cour de cassation (the French supreme court for civil matters) of 20 May 2026 answers no: without a personal benefit to the spouse, no compensation is due, whatever the amount taken from the community. For the valuer, the question of principle comes before any valuation.
The facts
A judgment of 17 September 2020 granted the divorce of spouses married without a prior marriage contract, and therefore under the statutory community regime. The liquidation stalled, among other things, over the financing of a property.
By deed of 17 October 2018, an SCI (société civile immobilière, a French property-holding company) bought a property for €140,000. The same day, the husband handed the notaire (French civil-law notary) in charge of the sale, on the company’s behalf, the sum of €148,000. Those funds were common funds: they had been paid, while the community lasted, into a bank account in his name. The SCI’s only shareholders were the husband’s two sons.
On 10 July 2024 the Nîmes Court of Appeal, reversing the first-instance judgment on this point, held that the husband owed the community compensation of €148,000, calculated under the rule of the expenditure made (dépense faite). It also held him liable for compensation equal to the deposit he had paid under the compromis (preliminary sale agreement) signed in his own name on 26 June 2018 with the seller of the property concerned, the amount of which he must justify to the liquidating notaire. The husband appealed: in his view, the sum had benefited the SCI, the sole buyer, whose shares belong to his children.
The decision
The Cour de cassation quashed the decision on this point, without remittal (Cass. 1re civ., 20 May 2026, appeal no. 24-21.221, unreported decision). The other grounds of appeal were dismissed without specific reasoning.
Citing article 1437 of the French Civil Code, the Court held that “compensation is due to the community only where a spouse has borrowed common funds to serve his or her separate estate and a personal benefit has resulted for that spouse” (translated from the French). Two cumulative conditions, therefore: serving the spouse’s separate estate, and giving the spouse a personal benefit.
It then criticised the Court of Appeal for failing to draw the consequences of its own findings: the SCI’s only shareholders were the husband’s two sons, “from which it followed that he had drawn no personal benefit from the expenditure incurred and that, consequently, no compensation was due to the community”.
The cassation was ordered “by way of striking out” (par voie de retranchement): the €148,000 compensation disappears from the appeal decision, and there is nothing left to retry. It does not extend to the compensation for the deposit: the ground of appeal raised no criticism of the reasons supporting it, and that part of the appeal decision is not dependent on the part quashed; it stands, without the Court ruling on its merits.
What this changes for valuation
Principle before amount. A compensation claim is dealt with in two stages: whether it is due, then how much. The decision concerns the first stage entirely. The common funds served an estate that is not the spouse’s: the property belongs to the SCI, the shares to the sons. There is therefore nothing to value for compensation purposes. Before quantifying, the valuer asks into which estate the common funds went, and for whose benefit: the spouse’s separate property, community property, a company’s property, a third party’s property. Where the asset stands at the date of liquidation, or of its disposal, matters only afterwards, for quantification. The answer on the principle lies with the liquidating notaire and, failing agreement, with the judge; it determines what the assignment must measure.
Expenditure made and remaining benefit. The Court of Appeal had used the expenditure made, that is the sum handed to the notaire, €148,000, for a price of €140,000. Where compensation is due and the common funds served to acquire, preserve or improve an asset found in the spouse’s estate at the date of liquidation, article 1469 of the Civil Code forbids it being lower than the remaining benefit (profit subsistant). That benefit is measured on the value of the asset at that date or, if the asset was disposed of before the liquidation, at the date of disposal, hence the valuer’s role: the formula is set out for works on separate property and for separate property partly sold.
Property held through a company. The Court inferred the absence of personal benefit from the finding that the SCI’s only shareholders were the husband’s two sons: who the shareholders of the owning company are is therefore a fact to establish before any quantification. The decision settles the case where the spouse holds no shares in that company; the case where the spouse is a shareholder remains open.
The nature of the funds, a separate question. The Court did not revisit the common character of the €148,000, which the Court of Appeal had inferred from their payment, during the community, into an account in the husband’s name. The presumption that funds in a personal account are common rests on article 1402 of the Civil Code and on a decision of 25 March 2026: Matrimonial compensation: personal account funds presumed common.
What the decision leaves open. The sons received, through their company, a property paid for with common funds; on how that expenditure should be characterised, gift or not, the decision says nothing. Should the question arise, other rules would apply: a gift of money used to acquire an asset counts, in the donor’s estate, at the value of that asset or of the shares acquired, as the articles on gifted money used to buy a property and on a gift of money invested in a company show.
What the valuer takes from it
- Compensation is due to the community only if the common funds served the spouse’s separate estate and gave the spouse a personal benefit.
- Common funds that finance the property of an SCI in which the spouse holds no shares give rise to no compensation, even for €148,000.
- The assignment first establishes into which estate the common funds went, and for whose benefit; where the asset stands at the date of liquidation, or of its disposal, matters only for quantification.
- Where the property belongs to a company, the assignment records who its shareholders are, since the Court inferred the absence of personal benefit from the fact that the only shareholders were the sons; the case of a spouse who is a shareholder is not settled.
- Where compensation is due, the remaining benefit is measured on values dated at the date of liquidation, or at the date of disposal if the asset was sold before, with their references.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Matrimonial property liquidation in France: which valuation date? and the glossary entries récompense, parts de SCI and date de valeur complement this article. On the origin of the funds: Matrimonial compensation: personal account funds presumed common. On the same theme: Divorce in France: compensation for works on one spouse’s house and Compensation: separate property partly sold, the profit is shared. The decision is available on Légifrance.
What next
A compensation claim disputed in the liquidation of your matrimonial regime?
I value the financed property, or the shares of the company that holds it, at the date of liquidation or, if it has been sold, at the date of its disposal, with and without the disputed expenditure. The report gives the notaire and the lawyers dated, referenced values, whatever the outcome of the debate on the principle of compensation.
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