Divorce: The headache of property division

Case 1

The family home belongs to one of the spouses

Mr and Mrs Durand are married without a contract under the legal regime of community of property reduced to acquests. With their two children, they live in a house that Mr. Durand inherited on the death of his parents. The house is therefore Mr Durand's own property. Mr. Durand wants his house back as soon as possible. What can they do?
From a legal point of view, this is the family home, the place where the Durands and their children live. This property is highly protected. The judge hearing a petition for divorce must award the marital home to one of the spouses, or decide that it is to be shared between them. Several criteria are weighed up when deciding on the allocation of the family home: the interests of the children and the respective financial situations of the spouses. In this case, the judge may decide that it is in the children's best interests to remain in the family home, and allocate enjoyment of the dwelling to the spouse with whom the children have their habitual residence under the provisional measures. In principle, once the divorce has been granted, the home would revert to the spouse who owns it, Mr. D. However, the judge could force the owner of the house to rent it to the spouse who has custody of the children. The duration of the lease would then be set by the judge.

Case 2

Who handles the division of property?

Mr. and Mrs. Armand wish to divorce. They've heard that they can "settle" everything on their own, given that they get along well and agree on everything. But can they?
Divorce inevitably involves the division of the spouses' movable and immovable property. You first need to know the rules governing your matrimonial property regime, and then look at the divorce procedure you've chosen. As far as movable property is concerned, even in a contentious divorce, the spouses can come to an agreement. The judge may even agree to a verbal division of property between the ex-spouses, with all the risks that this entails. In the case of real estate, the notary remains indispensable, whether for a contentious divorce or one by mutual consent (because of the land registration associated with the property). In the case of a divorce by mutual consent, as in the case of the Armand couple, the division of their property must be determined before the divorce agreement is filed with the notary.

Case 3

An indivision agreement may be a solution

Mr. and Mrs. Xavier were married under the community property regime. They want to divorce, but can't decide what to do with their house. Selling is not necessarily the best solution. How should they proceed?
In reality, the husband would like to buy back his share, but he doesn't have sufficient funds to do so. Their notary advises them to draw up an indivision agreement. This legal technique would enable them to divorce quickly and give them some time to think things over. The indivision agreement serves to remove the property (the house) from the community, while allowing the spouses to liquidate the rest of their assets. The agreement must be drawn up in the form of a notarial deed. It specifies the property to be transferred, the names of the co-owners and their respective shares in the property. This agreement is often for a period of 5 years, and the management of the property must be organized to avoid any problems. This solution should enable Mr Xavier to make the necessary financial arrangements to buy back his share.

Stéphanie Swiklinski