Divorce: what are the rules for the division of the spouses' property?

Verified 14 December 2023 - Directorate for Legal and Administrative Information (Prime Minister)

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Sharing Procedure

You're getting divorced? You have to share your assets. Here's the information you need to know.

Sharing rules depend on your matrimonial regime.

If you're married without a marriage contract, you come under the legal community regime. Otherwise, your marital regime depends on your marriage contract (separation of property, universal community...).

Whatever your matrimonial regime, liquidation and division are defined as all transactions concerning the distribution of property and the realization of accounts between spouses.

Community

The patrimony the spouses consist of each of the spouses' own property and the common property.

The own property are property owned by the spouses before the marriage and property received by donation or succession by a spouse during the marriage.

The common goods are the property acquired by the spouses during marriage. Salaries received during marriage are common goods, as are severance pay (dismissal, notice, paid leave, contractual termination).

In the event of divorce, each spouse repossesses his or her own property. The common property must be shared by half between spouses.

To share, you have to make the liquidation, i.e quantify the assets (including debts) of the spouses to determine the share value to go back to each one of them.

According to this calculation, a value sharing must be done. This sharing is a global operation that covers the entire assets of the spouses (movable property, immovable property, money, etc.).

If it is not possible to divide the assets into two lots of equal value, the former spouse who receives more assets must financially compensate the former spouse who receives the least.

If the former spouses (or one of them) own the former matrimonial home, the fate of this property must be examined during the liquidation.

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Home purchased before marriage

By the 2 ex-spouses (undivided)

The marital home is a undivided propertyNo, he's not coming into the community.

One of the 2 ex-spouses can choose to buy the other's share.

Ex-spouses may also choose to sell the property together and have each of them recover their share in the property.

The share to be allocated to each of them is determined according to the indications given in the authentic instrument signed when the property was acquired by the former spouses.

The 2 ex-spouses also have the possibility of keeping the property together under the division, for example to rent it. They may conclude a division agreement before a notary to determine the rules of use of the property and the distribution of revenue (rents) and expenses (taxes, maintenance costs...).

By a single ex-husband

The matrimonial home is a clean property.

The spouse who acquired the property before marriage remains the sole owner.

This former owner spouse sometimes owes a reward to the community, that is to say that he must repay the money invested by the community in the purchase of this property. That's the case if money common contributed to the repayment of the mortgage or was used for the work on the property.

Please note

in the divorce judgment, the Family Court Judge (Jaf) may grant a lease on the property to the spouse who does not own it. This lease can last up to the majority of the youngest common child.

Home purchased during marriage

The home is a common property unless it was purchased by a single spouse with his own money or built on the land belonging to one of them.

Common good

Ex-spouses may choose to sell the property together.

One of the 2 ex-spouses can choose to retain the property. In this case, he must pay his ex-husband a payoff.

Remuneration is not compulsory if the former spouse who does not keep the property takes other property as compensation.

The 2 ex-spouses also have the possibility to keep the property together, for example to rent it. The common good then becomes a undivided property. They may conclude a division agreement before the notary to determine the rules of use of the property and the distribution of revenue (rents) and expenses (taxes, maintenance costs...).

Property purchased by a spouse only with own funds

The property belongs only to the spouse who purchased the property with his own funds.

Please note

in the divorce judgment, the Family Court Judge (Jaf) may grant a lease on the property to the spouse who does not own it. This lease can last up to the majority of the youngest common child.

Well built on land owned by one spouse

The property belongs to the spouse who owns the land.

This former owner spouse sometimes owes a reward to the community, that is to say that it must repay the money invested by the community in the construction of this property. That's the case if money common contributed to the repayment of a credit or to the work on the property.

Please note

in the divorce judgment, the Family Court Judge (Jaf) may grant a lease on the property to the spouse who does not own it. This lease can last up to the majority of the youngest common child.

Savings

Ex-spouses take back the savings they had before the marriage or which they received by inheritance or gift, provided that they can prove the origin of the funds.

The money saved during the marriage belongs to the 2 ex-spouses and must be shared by half. This is the case, in particular, of savings made on the wages or rents received from a property owned by one of the spouses.

This saving is a common good and must be shared even if the money is deposited on a personal bank account, opened in the name of a single spouse.

Warning  

the account title does not allow the origin of the funds to be determined.

Savings are shared by half, even if the spouses have had different salaries or one spouse has worked and the other has not.

Credits

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Personal credits

Personal credits include:

  • Credits made before marriage
  • Credits contracted during marriage in the personal interest of a spouse and/or for which the solidarity don't play

These credits must be repaid by the spouse who contracted them, even if he or she is not immediately in a position to do so.

If the ex-husband paid his personal credits with money common, he must reward to the community, that is to say, he must repay the money lent by the community.

Common Credit

Each ex-spouse contributes half of the credits contracted during the marriage and remaining due at the time of divorce.

The following appropriations are concerned:

  • Credits contracted by 1 or 2 spouses for household needs and in line with the lifestyle of the household (e.g. small consumer credits)
  • Mortgage

A former spouse can repurchase the share of credit from the other, to become the sole owner of the property.

Debts

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Personal Debts

Personal debts include:

  • Debts incurred before marriage
  • Debts incurred in the personal interest of a spouse (gambling debts, purchase of which the amount is excessive in relation to the lifestyle of the household...)
  • Debts relating to a spouse's own assets (improvement of a house belonging to one of the spouses...)

These debts must be paid by the spouse who contracted them.

If the ex-husband paid his personal debts with money common, he must reward to the community, that is to say, he must repay the money lent by the community.

Debts incurred during marriage

Each of the ex-spouses contributes half to debts incurred during marriage and remaining due at the time of divorce.

This share concerns the following debts:

  • Debts incurred by the spouses for the maintenance of the household and the education of the children (health, school, holiday, rent, school canteen, extracurricular activities, bills, co-ownership charge...)
  • Debts incurred during the Community: bank overdrafts, tax debts...

On liquidation, the accounts between spouses are made to distribute the remaining debts.

The husband can take back the vehicle he owned before the wedding or received by inheritance or gift.

If the vehicle is a public good, it may be retained by one of the dependent spouses for him to pay financial compensation to the other spouse. If the vehicle is sold, the money must be shared between the spouses.

If the couple had several common vehicles, they can agree on a distribution (if necessary with financial compensation depending on the value of each of the vehicles).

Warning  

a vehicle purchased during the marriage generally belongs to the two spouses unless it was paid with own funds. Carte grise The name shown on the vehicle is used only to indicate who normally travels with the vehicle.

Each ex-husband takes over his furniture if it is his own property. Strictly personal belongings (clothes, papers, family souvenirs) and gifts are taken over by the husband to whom they belong. The working instruments are also taken over by the spouse concerned.

Common furniture must be shared by half, in kind (one piece of furniture for one piece of furniture) or in value (the price of the piece of furniture). The furniture is generally divided into lots.

The spouse who receives more in value must compensate the other.

The husband takes back the animal he owned before the wedding or received as a gift.

If the animal was bought or adopted during the marriage, it is considered a property common to the two spouses, whether it was bought or adopted by only one of the spouses or by the two. In this case, the ex-spouses decide by mutual agreement who keeps the animal. In the event of disagreement, the judge decides.

In assigning custody of the animal, the judge takes into account attachment relationships, the animal's well-being, the presence or absence of children, the conditions of accommodation and the ability to care for them. He may grant alternate custody.

FYI  

the guardian of the animal may be compensated by the other for maintenance costs (veterinary costs for example).

Lands, garages, second homes or real estate rented to third parties follow the same sharing rules as those of the former matrimonial home.

These properties purchased during the marriage are common property, unless they were purchased by a single spouse with his own money or built on the land owned by one of them.

Ex-spouses may decide to leave their property for rent. In that case, they have to share the rent.

Separation of property

The patrimony the spouses consist of the personal property of each of the spouses and of any undivided property.

The spouses retain ownership of their personal property.

Undivided assets are supposed to be shared. The liquidation of the property separation scheme consists of identify the ownership and share of each of the spouses in the undivided property.

The notary draws up any division accounts, i.e. the taking into account of expenses incurred by a single spouse (taxes, works, condominium charges, etc.) and income received by a single spouse (rents, for example).

The notary also determines the debts between spouses (e.g. the claim of a spouse who has financed the personal property of the other spouse).

Every ex-husband takes back his personal property.

The ex-spouse who claims personal ownership of property must prove it.

For a property (house, apartment, land...), the owner is the ex-spouse designated in the deed of ownership. If the other spouse has financed part of it, he or she can claim a claim, but does not own it.

Ownership of a movable property (car, furniture, jewelry, etc.) can be proved by any means: invoice, proof of the origin of the funds that financed the purchase, possession, etc. Sometimes an inventory inserted in the marriage contract or a clause provided for in the marriage contract establishes this right.

If no spouse can prove the exclusive ownership of a property, this property belongs to the 2 ex-spouses per half.

Real Property

Real estate acquired in division shall be shared according to the allocation provided for in the act (e.g. 1/4-3/4 or 1/3-2/3).

If the act does not specify a division, the ex-spouses are considered to be half owners and each one resumes his share.

FYI  

the money actually invested by each spouse in financing the purchase of the property does not change their respective share of ownership indicated in the deed.

Ex-spouses may choose to sell the property together.

One of the 2 ex-spouses may choose to keep the property. In this case, he must pay his ex-husband a payoff.

The 2 ex-spouses also have the possibility to keep the property together, for example to rent it. They may conclude a division agreement before the notary to determine the rules of use of the property and the distribution of revenue (rents) and expenses (taxes, maintenance costs...).

FYI  

where a spouse has carried out work on his or her spouse's personal property, the case law considers that he or she merely contributes to the costs of marriage. Therefore, he cannot claim a claim.

Movable property

Furniture is undivided if none of the former spouses can prove exclusive ownership or if they bought it together. He is considered to belong to the 2 ex-spouses per half.

The undivided property (vehicle, furniture, jewelry, etc.) may be kept by one of the ex-spouses who is responsible for paying the other ex-spouse financial compensation. If the property is sold, the money must be shared between the former spouses.

The couple must agree on a distribution of the property (if necessary with financial compensation).

Each spouse must pay off his or her personal debts.

Some debts bind the two spouses and must be paid by them in half.

For example, the following debts are incurred by the two spouses:

  • Debts incurred by the two spouses
  • Undivided property liabilities
  • Joint and several household debt. These are the debts incurred by the spouses for the needs of everyday life and the education of the children (health, school, holiday, rent, school canteen, extracurricular activities, invoices, telephone subscription, insurance contracts...)

Universal Community

All Assets of the spouses (furniture or real estate, current and future) are common, irrespective of the date of acquisition.

The property of its own nature remains the personal property of the spouse concerned (clothing, jewelry, damages received by a spouse for his moral or physical harm,...)

Spouses are obliged to pay all debts, present and future.

Warning  

be sure to check your marriage contract for specific clauses.

To share the assets, you have to make the liquidation, i.e quantify the assets (including debts) of the spouses to determine the value of the share to be returned to each of them.

During this operation, the ex-spouses take back their own property. Common property is shared equally, unless the marriage contract provides for a different division. Debts are also shared by half.

This sharing is a global operation that covers the entire assets of the spouses (movable property, immovable property, money, etc.). If it is not possible to divide the assets into two lots of equal value, the former spouse who receives more assets must financially compensate the former spouse who receives the least.

Please note

the marriage contract may include an unequal division clause, for example 2/3-1/3.

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