Can we borrow during a divorce proceeding?
The divorce procedure necessarily results in the liquidation of the entire community of life. Some spouses wish to take out a loan to quickly obtain new housing. Does this real estate purchase engage the couple? Can a spouse borrow alone during a divorce proceeding? All the explanations.
Real estate credit and divorce: the community regime reduced to acquests
Most French people marry under the regime of the community reduced to acquests which applies systematically in case of absence of marriage contract (articles 1400 and following of the Civil Code).
This matrimonial regime provides that movable or immovable property acquired during the marriage (excluding inheritance and gift) is common to both spouses. The personal property is the property acquired by each spouse before the marriage. In the event of divorce, each spouse thus recovers half of the commons, regardless of his participation.
However, it must be emphasized that as long as the divorce is not pronounced, the obligations and duties of the spouses are maintained. Thus, if a spouse wishes to subscribe to a mortgage only to finance the purchase of a home before the divorce, it is imperative to obtain the agreement of the other spouse to release the funds. This agreement signed by both spouses must specify that the non-borrower renounces the matrimonial consequences related to the subscription of the mortgage.
Real estate credit and divorce: the regime of separation of property
Unlike the regime of the community reduced to acquests, the regime of separation of property must be the subject of the conclusion of a marriage contract before a notary. In the context of this matrimonial regime, there is no common mass of property.
The property is the property acquired before and during the marriage by each spouse, those received by donation and the earnings and incomes of each spouse. However, the law specifies that everyone must contribute to the household’s expenses during the union and to the repayment of the mortgage loan taken out by both spouses.
In this regime, property acquired by one of the spouses before and during the marriage remains clean. Thus, a spouse in the process of divorce can subscribe to a mortgage only before his official pronunciation, subject to the conditions of eligibility for the mortgage.
Real estate credit and divorce: the regime of the universal community
It is possible to opt for the regime of the universal community before the date of marriage celebration or later, on the occasion of a change of matrimonial regime. The universal community provides for the pooling of all property acquired by the spouses, regardless of their date of purchase, origin and method of financing.
Under this scheme, each spouse is responsible for his personal credit on all of his common property. However, some goods remain clean. Examples include clothing, damages, compensation for moral or physical injury.
When the divorce proceedings are initiated, the property is divided equally between the two spouses. The marriage contract may nevertheless provide for a different division. The spouse who has opted for this scheme will have difficulty obtaining a mortgage only before the official pronunciation of the divorce, without having obtained the agreement of his spouse.
Following a divorce by mutual consent, the obligation of solidarity ceases. Similarly, in contentious divorce proceedings, the spouses are no longer liable to one another after the order of non-conciliation or the date of cessation of their cohabitation. They can thus contract a real estate credit freely, without obtaining the agreement of the former spouse.