During the divorce proceedings, the judge left one spouse free enjoyment of the home. Once the divorce is pronounced, that spouse lodges an appeal with the Cour de cassation (the French supreme court for civil matters), then withdraws it. Does the occupation indemnity (indemnité d’occupation) owed to the joint ownership (indivision) run from the divorce ruling or from the withdrawal? In a reported decision of 27 January 2016, the First Civil Chamber of the Cour de cassation chose the withdrawal, the day the divorce becomes final (force de chose jugée, the force of res judicata). For the valuer, this is the starting boundary of the period to be quantified.
The facts
A ruling of 22 February 2005 pronounced the divorce of two spouses. The wife lodged an appeal with the Cour de cassation against it, which she withdrew on a date that the 2016 decision does not state. Difficulties then arose in the liquidation and partition of their community property.
By a judgment of 17 April 2014, the Aix-en-Provence Court of Appeal set the ex-husband’s claim against the post-community joint ownership (indivision post-communautaire, the joint ownership that follows the dissolved community) for payment of property tax (taxes foncières). It ordered the ex-wife to pay an occupation indemnity to the joint ownership: the conciliation judge (magistrat conciliateur) had granted her enjoyment of the jointly owned building, and she had not returned the keys.
Adopting the first judge’s reasons, the Court of Appeal noted that this enjoyment had been granted free of charge for the duration of the proceedings, and that an indemnity is owed only from the date the divorce decision becomes final. But it held that, as a result of the withdrawal, the divorce had become final on the date of the ruling that pronounced it, and ran the indemnity from 22 February 2005. The ex-wife appealed.
The decision
The Cour de cassation first dismissed the other grounds (Cass. 1re civ., 27 January 2016, appeal no. 15-11.151, reported): the one on property tax, which is borne by the joint ownership, a point discussed in the article on property tax on occupied joint property, the one aimed at the indemnity itself, which merely disputed findings that are for the lower courts alone, and a third ground, which was plainly not such as to lead to the judgment being quashed.
It quashed, however, on the starting point, under articles 500 and 1086 of the French Code of Civil Procedure. It stated that “it follows from the second of these texts that an appeal to the Cour de cassation suspends the enforcement of decisions that pronounce divorce and from the first that the divorce judgment has the force of res judicata on the date on which it is no longer open to any suspensive appeal” (translated from the French).
The Court of Appeal had “rightly stated that an indemnity is owed only from the date on which the divorce decision acquires the force of res judicata”, but it took that date back to the divorce ruling, “whereas the decision pronouncing the divorce had acquired the force of res judicata on the day Mrs Y… withdrew her appeal”. The judgment was quashed only insofar as it set 22 February 2005 as the starting point of the indemnity owed for the occupation of the jointly owned building; the case was remitted to the Nîmes Court of Appeal.
The withdrawal therefore lifts, on its own date, the suspension attached to the appeal, without taking the force of res judicata back to the day of the ruling. The decision says nothing about the amount of the indemnity, nor about enjoyment that was not free of charge during the proceedings.
What this changes for valuation
The period is bounded before it is quantified. The indemnity is computed on the rental value (valeur locative) of the property, less an allowance for precariousness, and the ruling of 1 October 2025, discussed in the article on the home valued as close as possible to partition, requires that value to be followed throughout the sole enjoyment. The amount therefore depends as much on the boundaries as on the monthly value: where enjoyment was free during the proceedings, every month between the divorce ruling and the withdrawal drops out of the computation.
Two starting points, depending on the order. Without free enjoyment, the indemnity runs in principle, for a contested divorce, from the date the divorce takes effect between the spouses as regards their property: the non-conciliation order (ordonnance de non-conciliation) in proceedings begun before 2021, the divorce petition since then (article 262-1 of the French Civil Code), as the guide Matrimonial property liquidation in France: which valuation date? explains. With free enjoyment during the proceedings, the indemnity runs only from the day the divorce becomes final. The order setting the provisional measures specifies whether enjoyment of the home is free or not (article 255 of the Civil Code): it is the first document the valuer asks for.
The date the divorce became final is documented. A judgment open to a suspensive appeal becomes final when the time limit for that appeal expires, if no appeal has been lodged (article 500 of the Code of Civil Procedure); where an appeal to the Cour de cassation is followed by a withdrawal, the date of the withdrawal is what counts. The report does not decide that question of law, but it states the date used and the document on which it rests: divorce decision, certificat de non-pourvoi (certificate that no appeal was lodged) or notice of withdrawal. Where the starting point is disputed, it sets out the computation for each of the dates argued, and the judge chooses.
The end of the period. It comes at partition or at the actual return of the property to the joint ownership, under the ruling of 1 July 2026 discussed in the article on the occupation indemnity until partition or return of the property. The keys not returned, found here by the lower courts, point to the test for sole enjoyment, covered in the article Sole enjoyment in joint ownership: keeping the keys is enough. Finally, article 815-10 of the Civil Code bars any claim relating to fruits and income more than five years after they were or could have been received: the period quantified is also checked against the date of the claims.
What the valuer takes from it
- Where the judge granted one spouse free enjoyment of the home during the proceedings, the occupation indemnity runs only from the day the divorce becomes final; without free enjoyment, it runs in principle from the date the divorce takes effect between the spouses.
- Since an appeal to the Cour de cassation suspends enforcement in divorce matters, an appeal followed by a withdrawal moves that day to the date of the withdrawal, not that of the divorce ruling.
- The valuer gathers the order setting the provisional measures, the decisions and, where relevant, the notice of withdrawal; the report states the date used and its source, or quantifies each of the periods argued if the date is disputed.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Divorce in France: who keeps the house, how much is the buy-out? and the glossary entries indemnité d’occupation, indivision and valeur locative complement this article. Two other reported 2016 decisions on joint ownership are discussed in Sole enjoyment in joint ownership: keeping the keys is enough and Property tax on occupied joint property: borne by all co-owners. On the same theme: Occupation indemnity: until partition or return of the property and Divorce in France: home valued at partition, even if run down. The decision is available on Légifrance.
What next
A divorce pronounced, a home occupied free of charge during the proceedings, and an occupation indemnity to quantify?
I establish the rental value of the property for each period of occupation, from the date on which the divorce became final, and the allowance specific to the indemnity, for the notaire, the lawyer or the court.
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