LWhen spouses are united without a contract, their matrimonial regime is automatically that of the legal community. Their salaries are considered as belonging to the “community” of their two people, and not as their own property. The same applies to salary substitutes, such as severance. But what about stock options?
The right that shareholders give to certain employees to buy their company’s shares at a price lower than the market price constitutes a form of remuneration. But, as this right is “non-transferable” (article L225-183 of the commercial code), it constitutes, according to the civil code (item 1404), a property of its own, in the same way as “all property which has a personal character and all rights exclusively attached to the person”.
At the time of divorce, what happens to this personal property? This is the question posed by the following case. Throughout his marriage, Mr. X, an airline pilot, received stock options from Air France. On the day of the “non-conciliation order »who records his separation from Mme Y, as well as the dissolution of their community, only sixty-eight of them were the subject of a purchase.
Unilateral promise of sale
Mr. In fact, they are no longer stock options, specific property, but shares, common property. Their value will be that of their price at the time of sharing.
On the other hand, he refuses that the stock options not yet exercised are also integrated into this asset, as requested by M.me Y, on the grounds that these would be additional remuneration. The trial judgeswho are rightbased on the judgments that the Court of Cassation rendered on the matter in 2005 (03-30.709) and in 2014 (13-15,948): stock options are the personal property of the spouse who benefits from them, since he or she is the only one able to exercise the right of option that they confer.
Their asset value cannot enter the community until this right has been exercised: the option to purchase shares is, in fact, a unilateral promise to sell; the person who benefits from it does not ipso facto become the owner of the promised property or title. To do this, he must exercise the option.
THE October 25, 2023 (21-23.139), the Court of Cassation approves this reasoning. It judges that stock options only include the assets of the community if their purchase option was exercised before the dissolution of the community.
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