Buying a house during divorce
Divorce proceedings always take time. People need to rebuild their lives as soon as they separate, without waiting for the divorce to come through, and top of the list is finding a new home.
Buying a housing during a divorce for a couple which has signed a marriage contract
If you married under the regime of community
This is where problems can arise since community of property (community movables and property acquired after marriage if your marriage took place after 1st February 1966 or community reduced to property acquired after marriage after this date) only lasts as long as the marriage does. Until the divorce ruling comes through, any property bought by either spouse, including property bought alone comes into community and therefore belongs to both spouses. Incidentally, these difficulties are the same as those experienced if the spouses have adopted a community of property regime under a marriage contract (universal community of property for example). It is therefore always risky to purchase property during divorce proceedings if you were married under a regime of community of property.
If you married under the regime of separation of property
On the contrary, things are very simple if you married under the regime of separation of property. This scheme enables each spouse to conduct any legal transactions they desire alone, without the other being involved, both during the marriage and during the separation period. Of course, you should still take some precautions. In particular, you should check that the marriage contract providing for separation of property does not contain a provision for the sharing of property acquired after marriage.
Which solution exist for a couple which getting divorce without have signed a marriage contrat?
The best solution is to purchase the property by including a statement of investment or reinvestment in the deed of purchase. This solution assumes that the money used to buy the property is not in community. It might be a sum that the buyer received as a gift or bequest , or it could be the proceeds from the sale of an asset that the buyer owns exclusively. If this is the case, a statement of reinvestment prevents the asset from entering the community.
The use of the constitution of an Property Investment Company can also be envisaged with the same technique. The company will then be incorporated with another person, the contribution will be made with the investor's own funds (with a declaration of investment or reinvestment). In this case, the Property Investment Company is the sole owner, the spouse being the owner of the shares of the company.
If certain conditions are met, there are other ways of ensuring that an asset is not included in the community of property.
At the time of purchase, the divorce proceedings must be initiated. It is prudent to wait for the non-conciliation order if it is a contentious divorce. If the procedure chosen is divorce by mutual consent without judge (applicable from 1 January 2017), it is advisable to wait for the signature of the divorce agreement. In addition, the divorce agreement must contain a postponement of the effects of the divorce at a date prior to the acquisition.
When all conditions are met, and for this it is essential to seek advice from a notary, then the property acquired during the procedure will not fall into the community assets . Attention, this solution produces these effects only between husband and not vis-à-vis third parties (banks or creditors for example...).
In each case, the desired outcome – i.e. exclusion of the asset from the community – will not occur unless the divorce ruling is issued. There is therefore a risk that the community will not be dissolved for lack of divorce. The resale of the property will require the signature of the spouses and the selling price will be common.