Spouses married under separation of property divorce in 2013. The husband financed, with personal funds drawn from his shareholder current account, part of the family flat bought in joint ownership, then part of the construction of a jointly owned house. He claims a debt at the liquidation. The Chambéry court of appeal refuses: the marriage contract presumes that each contributed day by day to the expenses of the marriage, the husband earned far more than his wife, the property was the marital home, and those payments therefore fell within his normal contribution. The Cour de cassation (the French supreme court for civil matters), on 9 June 2022, in a reported decision, quashed: “unless the spouses agree otherwise, a capital contribution of personal funds, made by a spouse married under separation of property to finance the other’s share on the acquisition of a jointly owned property used by the family, does not form part of the performance of his obligation to contribute to the expenses of the marriage”, and the same applies to a contribution financing “the improvement, by construction,” of such a property. For the valuer, this means a claim to quantify, under the rules of the subsisting profit, on the value of the property at the date of partition.
The facts
A ruling of 16 July 2013 pronounces the divorce of spouses married under the separation of property regime. Difficulties arise in the accounts, liquidation and partition. The husband claims two debts: one for financing the family flat, acquired in joint ownership and paid for in part by a capital contribution from his shareholder current account; the other for the construction works on a jointly owned house, evidenced by a cheque drawn on his account in favour of the developer.
The Chambéry court of appeal, on 1 September 2020, rejects both claims: the marriage contract stipulates that each is deemed to have provided day by day their contributory share, with no account between them; the disparity in income should lead the husband to contribute more; the wife also fed the joint account; the property had been the marital home; the husband’s payments therefore formed part of his contribution to the expenses of the marriage, without exceeding a normal contribution. The husband appealed.
The decision
The first civil chamber quashed, under article 214 of the Civil Code (Cass. 1re civ., 9 June 2022, no. 20-21.277, reported). “It follows from that provision that, unless the spouses agree otherwise, a capital contribution of personal funds, made by a spouse married under separation of property to finance the other’s share on the acquisition of a jointly owned property used by the family, does not form part of the performance of his obligation to contribute to the expenses of the marriage.” And, for the house: “a capital contribution of personal funds, made by a spouse married under separation of property to finance the improvement, by construction, of a jointly owned property used by the family, does not form part of the performance of his obligation to contribute to the expenses of the marriage”.
By holding otherwise after finding that these were capital contributions of personal funds, the court of appeal breached the provision. The case is sent back to the Lyon court of appeal.
What this changes for valuation
A capital contribution is not an everyday expense. Earlier case law accepted that the repayment of the family home’s loan instalments by the wealthier spouse falls within his contribution to the expenses of the marriage, with no claim on divorce. This ruling draws the line: a capital contribution, paid in one go with personal funds, to pay the other’s share or to build, is not a contribution to expenses, unless the contract provides otherwise. It opens a claim against the spouse. For the valuer, the preliminary question is therefore to characterise each flow, capital contribution or day-to-day payment, from the statements and deeds, before quantifying.
The claim is computed according to the subsisting profit. Between spouses under separation of property, the claim of the one who financed the other’s share in a jointly owned property follows article 1543 referring to article 1479, hence the subsisting-profit rule of article 1469: the claim cannot be less than the subsisting profit where the sum served to acquire, preserve or improve a property found at partition. Concretely, the report establishes the value of the property at the date of partition, computes the fraction financed by the contribution relative to the cost of acquisition or construction, and applies that fraction to the current value; if the property has lost value, the claim does not fall below the expense made. It is the same formula as the one described in the article on compensation for works on separate property.
Two properties, two computations. The contribution financed the acquisition of a flat, then the construction of a house. For the flat, the fraction is the contribution relative to the purchase price including costs; for the house, the contribution relative to the total construction cost, applied to the value of the house at partition, land excluded if it was not financed by the contribution. The report treats each property with its own documents, deed, invoices, cheques, and gives for each the expense made, the subsisting profit and the claim retained. The article on the claim of the co-owner who paid the loan applies the same logic outside marriage.
The marriage contract clause counts, but not for everything. The very common clause presuming day-to-day contribution covers current expenses; it did not prevent the Court from recognising the claim for a capital contribution. Only an express agreement to the contrary, for instance a clause characterising capital contributions to the home as contributions, would exclude the claim. The valuer reads the marriage contract and flags it, but the characterisation remains the judge’s.
For the valuation report: dates and condition. The value at the date of partition is set at the date closest to it, as for any partition; the condition of the property taken into account is the one resulting from the financing, the flat as acquired, the house as built, without later improvements financed otherwise. The guide on the liquidation of the matrimonial regime recalls those date rules.
A 2021 precedent. The Court had stated the same rule on 17 March 2021 (Cass. 1re civ., no. 19-21.463, reported): “unless the spouses agree otherwise, the capital contribution of personal funds made by a spouse married under separation of property to finance their partner’s share in the purchase of a jointly owned property used by the family does not form part of the performance of their obligation to contribute to the expenses of the marriage”. Only the repayment of loan instalments may count as a contribution to expenses; a capital contribution creates a claim. The two rulings are read together.
When the marriage contract settles the contribution. In a reported ruling of 18 November 2020 (Cass. 1re civ., no. 19-15.353), the Court held that where the trial judges have found irrebuttable the presumption arising from the clause of the separation-of-property contract under which each spouse “would be deemed to have provided their contributory share day by day, so that they would not be subject to any account between them”, a spouse cannot “be allowed to prove the insufficiency of their partner’s participation in the expenses of the marriage any more than the excess of their own contribution”. Such a clause closes the discussion on everyday expenses and loan instalments; it does not concern a capital contribution, which remains a claim under the 2021 and 2022 rulings.
The first ruling in the series dates from 2019. On 3 October 2019 (Cass. 1re civ., no. 18-20.828, reported), the Court had already held that “unless the marriage contract provides otherwise, a capital contribution from the sale of personal assets, made by a spouse married under separation of property to finance their partner’s share in the purchase of a jointly owned property used by the family, does not form part of the performance of their obligation to contribute to the expenses of the marriage”. The rulings of 2019, 2021 and 2022 form a consistent line: a capital contribution creates a claim, whatever the origin of the personal funds.
The proportion is computed on the spouse’s funds alone. In a reported ruling of 18 January 2017 (Cass. 1re civ., no. 16-12.391), concerning a gift-partition equalising payment made with the proceeds of a property jointly owned by the wife and her mother, the Court held that “the subsisting profit had to be determined according to the proportion in which the funds contributed by the wife, excluding any contributed by her mother, had contributed to paying the equalising payment that enabled the allocation of the land”. The article on the funded payment and the loan for use presents that ruling.
Before the series, the rental investment. In a reported ruling of 5 October 2016 (Cass. 1re civ., no. 15-25.944), given under the participation in acquisitions regime (participation aux acquêts), the Court had already held, under article 214 of the Civil Code, that the financing, by a spouse, of a rental investment intended to build up savings “does not fall within the contribution to the expenses of the marriage”. The husband alone had financed a jointly owned flat intended for letting; the court of appeal had seen in it a remunerative and compensatory act in favour of the wife, a stay-at-home mother, and not the revocable indirect gift he relied on. That characterisation was quashed, and the characterisation of the financing went back to the court of appeal on remittal. The rulings of 2019 to 2022 apply the same exclusion to a capital contribution to the family home itself. The article on the rental investment outside marriage expenses presents that ruling.
What the valuer takes from it
- A capital contribution of personal funds by a spouse under separation of property, to pay the other’s share in the family home or to build it, is not a contribution to the expenses of the marriage, unless agreed otherwise.
- It opens a claim against the spouse, computed according to the subsisting profit on the value of the property at the date of partition.
- The report first characterises each flow, capital contribution or current expense, then quantifies property by property.
- The financed fraction applies to the current value of the property, without falling below the expense made.
- The day-to-day contribution clause does not cover capital contributions.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Matrimonial property liquidation: setting the valuation date and the glossary entries récompense, indivision and soulte complement this article. On the same theme: Divorce in France: compensation for works on one spouse’s house and Joint ownership: a loan repaid by one owner and article 815-13. The decision is available on Légifrance.
What next
A divorce under separation of property, a jointly owned home financed by one spouse, and a claim to quantify at partition?
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