Buying a house during a 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 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. If certain conditions are met, there are other ways of ensuring that an asset is not included in the community of property.
Divorce proceedings must be under way at the time of the purchase (i.e. an initial application must have been filed with the courts or a summons been issued to the other spouse). The spouses must then set a date for dissolution of the community of property that is prior to the purchase date.
Then, the spouses must settle in their agreement of divorce by mutual consent the dissolution of the community at a date prior to the purchase (for example that of the cessation of the common life). Failing that, it will be the date of the homologation of the agreement by the judge who will be chosen or for the new divorce by mutual consent without a judge (applicable from 1 January 2017) from the date on which the agreement is filed in Minutes of a notaire. If they divorce by using another divorce procedure (for fault, agreed, spoiled marriage ), it is prudent to wait for the non-conciliation order, the effective date of the divorce, before buying. Otherwise, it will be necessary to obtain from the judge a postponement of the date of the effects of the divorce to the date on which they ceased to cohabit.
In each case, the desired outcome – i.e. exclusion of the asset from the community – will not occur unless the divorce ruling is issued. Otherwise, the joint ownership will not be dissolved and the purchased asset will be included in the community (it will thus be subject to the sharing ). Both spouses will have to authorise any future sale of the asset.