Divorce and real estate: what's the best way to divide assets?

Divorce: what happens to the couple's real estate?

In the event of divorce, the matrimonial property regime plays a crucial role in the distribution of real estate assets between the former spouses. If the marriage was governed by the community property regime, all real estate acquired during the union is considered to be common property, unless it was purchased with the couple's own funds or built on land belonging to one of the spouses. In the event of divorce, property belonging to the community is generally divided equally between the spouses. They can then choose from the following options:

• Sell the property and share the proceeds.
• One spouse keeps the property and pays financial compensation to the other.
• Maintain the property in joint ownership, often with the aim of renting it out to a third party (a less frequent option).

In the case of a marriage under the regime of separation as to property, each spouse gets back his or her personal real estate. However, if property has been acquired jointly (for example, 50/50 or 40/60) during the marriage, it must be shared in the proportions established at the time of purchase. The ex-spouses may then decide to sell the property, keep it in joint ownership, or leave it to one of them in exchange for a balance.

Managing an outstanding mortgage during a divorce: what to do?

First of all, it's essential to identify the nature of the mortgage: was it taken out jointly or individually? If the loan was taken out in the name of both partners, each is jointly and severally liable for repayment, regardless of occupation or use of the property. It is advisable to contact your bank to explain the situation and explore the various possible solutions, depending on the desired future of the property:

• One spouse may decide to buy out the other's share of the loan, often accompanied by a purchase of his or her share of the property. This requires a notarial deed to formalize the debt transfer.
• The spouses may choose to maintain the joint mortgage until the property is sold. This option requires good cooperation to continue repayment jointly, in accordance with the terms agreed with the bank.

It should be noted that if one of the spouses stops repaying his or her share of the loan, the responsibility remains with both, unless there is a specific agreement with the lender to disengage one of the spouses. Non-payment may incur penalties and even lead to seizure of the property following legal proceedings.