Spouses married under separation of property divorce and sign, in October 2003, a deed of partition: the jointly owned building is allocated to the husband against an equalising payment, and the wife acknowledges that the husband holds a claim against the joint estate for the renovation works he paid for from his own funds, retained at the nominal amount spent, 129,582 euros. A year later, the husband resells the building for more than the value retained in the partition; the wife sues for lesion (lésion, the rescission or supplement available when a party receives less than three-quarters of its due share). An expert values the property at 430,000 euros at the date of the partition, and the Bordeaux court of appeal, keeping the claim for works at its nominal amount as the parties had agreed, finds a lesion of more than a quarter and orders the husband to pay a supplement of 116,099 euros. The Cour de cassation (the French supreme court for civil matters), on 25 October 2023, in a reported decision, quashed: to assess lesion, the estate is reconstituted “in all its assets and liabilities estimated at their value at the time of the partition”, and the claim of the co-owner who improved the property is valued “according to equity, having regard to the increase in the value of the property at the time of the partition”, not at the nominal amount of the works. For the valuer, one consistent assignment: value everything at the date of the partition, the building as well as the added value of the works.
The facts
A judgment of 17 June 2003 pronounces the divorce of spouses married under the separation of property regime. On 28 October 2003 they conclude a deed of partition allocating the jointly owned building to the husband against an equalising payment to the wife, by which she acknowledges that the husband holds a claim against the joint estate for financing, from his own funds, renovation works on the building; the parties state that they refrain from examining whether those works increased the value of the property and keep to the nominal amount of the expenses, 129,582 euros.
The building is sold a year later for a price higher than the one retained in the partition. The wife sues the husband for lesion. The Bordeaux court of appeal, on 14 September 2021, holds that lesion is to be assessed by reference to the claim as agreed in the deed, finds, on the basis of the expert’s estimate of 430,000 euros at the date of the partition, that the wife was deprived of more than a quarter of her rights, and sets the supplement at 116,099 euros. The husband appealed: the claim for works had to be valued under article 815-13, by the added value, not at the nominal amount.
The decision
The first civil chamber quashed, under articles 815-13, first paragraph, 887, second paragraph, and 890 of the Civil Code, the latter two in their wording prior to the law of 23 June 2006 (Cass. 1re civ., 25 October 2023, no. 21-25.051, reported). “To assess whether a partition is lesionary, regard must be had to the liquidation and overall settlement of the rights of the co-partitioners, by reconstituting, at the date of the disputed deed, the estate to be divided in all its assets and liabilities estimated at their value at the time of the partition.” And “where a co-owner has improved at his own expense the condition of a jointly owned property, account must be taken of it according to equity, having regard to the increase in the value of the property at the time of the partition”.
By keeping to the claim set in the deed at its nominal amount, “whereas, to assess whether the partition was lesionary, the claim held by Mr W against the joint estate had to be valued in the manner provided for in article 815-13 of the Civil Code, the court of appeal breached those provisions”. The case is sent back to the Poitiers court of appeal.
What this changes for valuation
Lesion is judged on a complete liquidation, redone at the date of the partition. It is not enough to compare the value of the property with that retained in the deed. The estate must be reconstituted, assets and liabilities, including claims between co-owners, each at its value at the date of the partition, then what each co-partitioner should have received is computed and compared with what he received; lesion exists if the gap exceeds a quarter. The valuer’s report therefore presents a reconstituted liquidation statement, not only a market value. The glossary recalls what lésion is and its threshold.
The claim for works is an added value, not an invoice. Article 815-13 measures what the joint estate owes to the one who improved the property by “the increase in the value of the property at the time of the partition”. Renovation works paid 129,582 euros may have brought the property a smaller added value, if part of them were maintenance or personal taste, or a larger one, if the market rewarded the renovation. The valuer values the property at the date of the partition in its renovated condition, then in the condition it would have had without the works, and the difference is the claim; the amount of the invoices serves as a check, not as the measure. The article on the conservation claim of a co-owner describes the same computation for conservation expenses.
What the parties agreed does not bind the judge of lesion. The spouses had chosen, in the deed, to retain the nominal amount; the Court sets that aside, because rescission for lesion is a public-policy protection verified on the parties’ actual rights, not on their agreement. For the valuer, this means that the valuation assignment in an action for lesion ignores the stipulations of the deed on values and claims, and starts again from the statutory rules.
A more expensive resale is only a clue. The action arose from a resale a year after the partition at a higher price. As for lesion in a sale, the later price does not fix the value at the date of the partition; it triggers the check, and the valuer establishes the value at the date of the deed with the references of that date, then explains what separates that value from the resale price, market, works, negotiation.
The supplementary share is recomputed. Once the estate is reconstituted, the supplement owed to the co-partitioner who suffered lesion is the difference between what he should have received and what he received, in money or in kind at the defendant’s choice. The report gives both figures and the gap, with the detail of each item, because that detail, and in particular the added value of the works, will decide whether the quarter is exceeded.
What the valuer takes from it
- Lesion in a partition is assessed on an overall liquidation reconstituted at the date of the deed, assets and liabilities included.
- The claim of the co-owner who financed works is valued at the added value brought to the property at the date of the partition, not at the nominal amount of the expenses.
- The stipulations of the deed on values and claims do not bind the judge of lesion.
- A more expensive resale after the partition triggers the check but does not fix the value.
- The report presents the reconstituted liquidation statement and the resulting supplementary share.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Divorce: value of the home and equalising payment and the glossary entries lésion, soulte and indivision complement this article. On the same theme: Sale below value in France: rescission for lesion in two rulings and Divorce in France: when to value the house, who pays the expert. The decision is available on Légifrance.
What next
A partition signed then challenged, a property resold for more, and a lesion of more than a quarter to verify?
I reconstitute the divided estate at its value at the date of the deed, assess the added value brought by the works financed by one co-owner and quantify the gap with the share received, for the action for a supplementary share or its defence.
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