Pparadoxically, a wife can escape her spouse’s creditors during the duration of her marriage, but be caught up in his debt during her divorce, as the following case shows.
In 1999, Mr.me Y, an “ultimate” loan [qui permet de ne rembourser que les intérêts pendant la durée du crédit, le capital étant remboursé avec la dernière mensualité] of 1.8 million francs, or 282,000 euros, to finance a repurchase of personal loans and the acquisition of a second home.
In 2005, the spouses opted for universal community, a regime in which almost all present and future property, as well as, correlatively, present and future debts, become common. In 2015, the spouses divorced.
In 2016, when the bank summons Mr. asks to call his ex-wife into the case. He says his debt is now part of “definitive liability” of their community, by virtue of the essential principle of their matrimonial regime according to which “ the universal community definitively bears all the debts of the spouses, present and future” (article 1526 of the civil code). He assures that Mme There must be ” contribute ».
“Panacea”
The latter maintains on the contrary that she is protected from the creditors of her ex-husband, since the same civil code (article 1415) says that the borrower married under the regime of legal community cannot “ commit only his own property and his income” – and that this provision “imperative » has been, on May 3, 2000 (97-21.592)extended to the universal community: according to her, M. X must repay his debt with his own assets and income.
Mme Y considers in fact that this protective provision continues to be imposed after marriage, and that it prevails over the rules which govern the liquidation of the universal community: this is what the Court of Cassation has long ruled. THE January 28, 2003 (01-01.807)she thus decided that a widow, who had become the owner of her husband’s assets thanks to a full community attribution clause, did not have to repay the loan taken out by him without her consent.
But this decision was strongly criticized. One commenter even exclaimed : “It is no longer the universal community, but the universal panacea! » Protests arose again when the Court confirmed its point of view, the October 5, 2016 (15-24.616).
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