Sell or buy a property during a divorce procedure
Often, upon separation, without waiting for the final divorce to be pronounced, you have to resettle. Renting or an accommodation through family or friends is one solution. But in some cases, a sale and/or a purchase is considered.
Selling the family home during a divorce
A spouse is not allowed to sell the marital home during the procedure without the consent of his/her spouse, even if he is the sole owner
Buy a property during a divorce for a couple who have a prenuptial agreement
If you are married under the vestige of community
Difficulties emerge, because the community (community of movables and acquisitions if your marriage was celebrated before February 1, 1966 or community of acquisitions after this date) lasts as long as the marriage lasts. Until the divorce decree, all property purchased by one of the spouses, even separately, theoretically becomes part of the community and therefore belongs to both. These difficulties remain, if the spouses have adopted for community regime by a prenuptial agreement (universal community for example).
If you are married under the regime of separate property
This is very simple: This regime allows each spouse to carry out all the legal operations of his choice alone, without any assistance from the spouse, during the marriage and upon separation. Indeed, precautions still need to be taken. Mainly, one must make sure that the marriage contract for the separation of property, does not contain a partnership of acquisitions.
What is the solution for the couple getting a divorce and who didn’t establish a prenuptial agreement?
The best solution is to buy with a declaration of use or re-use. This technique means that the money used for the purchase, does not depend on the community. The latter can be a given or bequeathed sum or even constituted by the sale price of one’s property. The declaration of re-use then prevents the property from becoming part of the community.
Using an SCI can also be formed through the same technique. The partnership will then be incorporated with another person, the contribution will be carried out, with the equity of the investing spouse (accompanied by a declaration of use or re-use). Given this hypothesis, SCI is the sole owner, the spouse being the owner of the company's shares. Apart from the technique of declaration of use or re-use, it is possible to avoid becoming part of the community of property, in the community through certain conditions.
At the time of purchase, divorce proceedings must be initiated. It is always a safe option, to wait for the non-conciliation order if it is a contentious divorce. If the chosen procedure is divorce through mutual consent without a judge (applicable January 1, 2017 onward), it is advised to wait for the divorce agreement’s signature. Moreover, the divorce agreement must contain a delayed impact of the effects of the divorce, to a date prior to the acquisition. When all the conditions are met, and for which, it is key to get advice from a notary, then the acquired property during the procedure will not fall within the community assets . It must be noted, this solution triggers these effects only between spouses and not with third parties (banks or creditors for example…).
In any case, the desired effect, which is the exclusion of the property of the community, will only take place if the divorce has been declared. Thus, there is a risk that the community will not be dissolved unless the divorce is final. The property resale shall require the signature of the spouses and the sale price will be common itself.
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