Couple and debts: For the best and to avoid the worst.

Household debts

Household debts are like household chores: they are shared by both spouses. Whatever their matrimonial regime, the spouses are jointly responsible for the expenses concerning "the maintenance of the household or the education of the children" (article 220 of the Civil Code). This concerns the payment of rent as well as water and electricity bills, health expenses, insurance, children's school fees, leisure expenses, income taxes, housing taxes (provided that the spouses actually live under the same roof)... As an exception, this rule also applies to less "common" debts, provided that an agreement has been reached between the spouses or that it has been obtained by legal means.
Solidarity means that the creditor can claim what is owed to him from both the husband and the wife. He can seize the joint property, their salaries or their own property (that is, property held before the marriage by each of the spouses and property received by donation or inheritance during the marriage). And it doesn't matter who was at the origin of the expense.

Solidarity has limits

The rule of solidarity no longer applies when the debt contracted by one of the spouses is clearly excessive in relation to the family's lifestyle and the usefulness of the expense. Solidarity does not apply either when a spouse has stood surety for a third party (for a credit or a lease), without the agreement of his or her spouse. In this case, he or she commits his or her own property and income (after participation in household expenses) but not those of his or her spouse. Even if the couple is married under the legal regime, the common goods cannot be seized to honor the guarantee. Similarly, when a spouse takes out a loan alone, he or she is only obligated to his or her own property and income. However, beware of case law. If the loan signed by a spouse is for "modest sums necessary for everyday needs", both spouses become jointly liable. The creditors can therefore seize, at their choice, the common goods, the wages or the proper goods of one or the other of the spouses.

PACS and cohabitation

Persons who have entered into a civil union, under a separatist or community regime, are jointly and severally liable for the debts contracted by one of them for the needs of daily life and expenses relating to the common dwelling. This is the same rule as for married persons. On the other hand, cohabitants are, in principle, only responsible for the debts they personally contract. However, judges may consider that third parties may have thought in good faith that they were dealing with two married people. And thus apply the rule of solidarity that follows.

Professional debts

The fate of debts arising from the professional activity of the spouses will depend to a large extent on the matrimonial regime chosen.
If the spouses are married under the regime of separation of property or participation in acquests, the creditors will not be able to seize the assets of the spouse. They can only be reimbursed through the property of the one who is at the origin of the debt. Conversely, if they have chosen the regime of community of acquests or universal community, the creditor will be able to pay out of both the debtor's personal property and the common property.

The declaration of unseizability

The declaration of unseizability concerns all natural persons registered in the Trade and Companies Register or the Trade Register.
Its purpose is to protect the real estate (own, common or undivided) which is not linked to the exercise of the professional activity.
The declaration of unseizability of the principal residence is automatic since the Macron law (2015). However, for the rest of the personal property, the declaration of unseizability must be established by a notary and filed with the Service de la publicité foncière (SPF) before being published. Otherwise, the personal property (excluding the principal residence) can still be seized by professional creditors.

Marie-Christine MENOIRE