Divorce leads to many consequences, including those of the compensatory allowance and the liquidation of the matrimonial regimeThe terms and conditions of the liquidation of the matrimonial regime are a function of the type of divorce: amicable, tort or otherwise. In the regime of the legal community the most widely adopted, distinguishes three categories of assets: Good to know: in the event of a divorce, husband, married under the regime of community reduced to acquests, should provide evidence that the furniture of her very own to be able to carry it away. To determine the fact that a piece of furniture is a well own, the judge takes into account, in the absence of inventory or other evidence préconstituée, all written (titles, family records and papers domestic, banking documents and invoices). It may also admit the evidence or the presumption, if it finds that a spouse was in the physical impossibility or the moral of the get a written. Please note: if spouses purchase a property with a declaration of use, if the own funds of one spouse are greater than the amount invested by the community, the property is considered a property of the spouse whose funds are superior (Cass. The purpose of the liquidation of the matrimonial regime is to ensure that each of the spouses to resume its own property, and then the spouses share the net assets of the community (the mass of the goods, subject to deduction of debt). The sharing is set on the basis of half each of the net assets. If the liquidation of the matrimonial regime may remain a standalone procedure, subsequent to the granting of the divorce, the divorce act allows spouses to lead at the same time as the divorce by encouraging them to find agreements. However, given the financial stakes and heartburn persistent between spouses after a divorce, many ex-spouses confront each other often and long upon the liquidation of their matrimonial regime. In order to expedite the procedure of divorce, the decree n° - of the fifteen October on the simplification of the family law allows the husband to seek the division of property upon divorce.
If no amicable solution is not possible, the judge can then determine the matrimonial regime applicable.
The breakdown of the particular goods and common goods may seem simple, but there is often"confusion of heritage"in the course of the union.
Example: the spouses were able to build the housing of the family (common good) on a plot belonging to one of them (well own received by way of gift): in this case, a reward is due.
The principle of rewards is to maintain or restore the balance of assets, equity of the spouses and of the common heritage. It should be avoided that, during the sharing operations, the mass of the community is increased or diminished to the detriment or in favour of own heritage of one of the spouses. The notary is responsible for drafting the act of sharing in the community calculates the awards, according to the rules of the civil Code. When the account of the rewards is stopped for each of the spouses, the balance is made: each must report the amount to the community, or claim for payment. In terms of mutual consent (divorce amicable), the convention established by the spouses must include the state liquidating their matrimonial regime or mention that it is not necessary to set it at default of common goods. The intervention of a notary public is imperative, therefore, that the spouses have a building to share such as the former matrimonial home. The notarial deed must be annexed to the agreement of divorce.
The convention will take effect on the date of the filing of the deed to the rank of minutes of a public notary (since January, in the case of divorce by act of counsel) or by the certification by the judge of family affairs in the case of judicial divorce.
Some spouses wishing to divorce in the best possible prefer to avoid the risks related to the sale of their property, others choose to stay in indivision to put it in lease, or let to one or the other the possibility of living there: the terms and conditions of the joint are then established in a co-ownership agreement, the duration of which may not exceed five years. Note: any joint ownership agreement relating to immovable property must also be the subject of a notarial act, which shall be subject to publication land.
In the other procedures of divorce, the operations of liquidation of the matrimonial regime are independent of the divorce proceedings even if they are encouraged by the law and only intervene once the divorce decision has become final.
The order of non-conciliation generally involves the appointment of a notary to establish a project of liquidation. The court may appoint a qualified professional to draw up the inventory to the estimated property of the spouses and to make proposals for the settlement of their pecuniary interests (article ° of the civil Code). A judgment of the Court of cassation of the nineteen-October came to clarify that this professional could be a lawyer. Subsequently, the writ of divorce must contain a proposal for a regulation of the pecuniary interests of the divorce. The husband, at any time of the procedure, may reach an agreement and pass a convention on the liquidation of their matrimonial property regime subsequently ratified by the divorce judgment.
In default of agreement, the divorce decision has become final wins liquidation of the matrimonial regime and authorizes the former spouse to do so.
The common assets become undivided and the spouses have a one-year delay to achieve the liquidation of their matrimonial regime. In case of failure, the notary in charge of the liquidation shall transmit to the court a document stating the claims of each party called a procès-verbal of difficulties. A new period of six months will be granted In default of agreement, the notary will draw up a new minutes of the difficulties that will to the spouses, through their lawyers go before the judge for family affairs of a procedure of liquidation of the matrimonial regime.
It is not uncommon for this procedure often litigation is lengthy and expensive, particularly in light of the measures of expertise sought by the parties for the assessment of the common heritage.
During the marriage, one spouse, even if it is a property of its own, may not proceed with the sale of the marital home or dispose of it without the other's permission. The marital home is an important issue of divorce in the extent to which it has been the center of family life and remains an element of stability for the children following the divorce. The divorce, the marital home is one's own good, common, or undivided, the ex-spouses may agree to its sale, the redemption by one of the part of the other, or, finally, of its occupation by one of them under of a joint ownership agreement notarized. Failing agreement and if it is an own property of the one spouse, the other spouse may not maintain, without leave of the judge. In the interest of the children, the judge remains always very attentive to the fate of the former marital home that he can set at the request of the husband: Good to know: when an ex-spouse decides to buy back the half share of the other in order to keep the property, it benefits from expenses of notary reduced, of the sale price of the property. It is important to make the distinction between donations made between spouses of those received from third parties. You should know that the divorce does not automatically entail the revocation of donations and benefits between the spouses. An advantage of marital is a clause inserted in a contract of marriage, which allows sharing of the community, by divorce or by death, to benefit one of the spouses, and therefore to derogate from the principle according to which the community is divided by half between the spouses. Are thus considered as matrimonial benefits: a clause for levy of a property in the community, a clause of unequal sharing of the community, the adoption of the"universal community"regime.
According to article, paragraph, of the civil Code, the divorce has no impact on the donations and the matrimonial advantages which take effect during the marriage: from January, the law considers that they are irrevocable.
Thus, the husband cannot take back what they were given, even if they divorce.
If the spouses have adopted the regime of the universal community, the rules of sharing are those of this regime, that is to say the sharing of the entire property: each spouse owns half of all property. By contrast, the divorce entails the revocation of right of donations and the matrimonial advantages which take effect at the dissolution of the matrimonial property regime, as well as provisions in case of death (wills), unless otherwise agreed by the spouse who has made. This commitment is appreciated by the judge at the time of the pronouncement of the divorce, which then declares the advantage or the provision irrevocable. Example: the spouses have adopted in the course of their union, the regime of the universal community with the award of the property to the last living. Their divorce has consequences for the liquidation of the assets according to the rules of the universal community, but without full entitlement of the community in the event of death (unless otherwise agreed at the time of divorce). The divorce has no impact on the donations made by third parties (most often the parents of the husband): they are irrevocable. The spouses married under a community regime, however, must pay attention to the donations of sums of money. In fact, if a parent with a spouse without the establishment of a document the attesting, and that the sum is transferred without accuracy, it is then the community that is presumed to have been rewarded. Therefore, at the time of the divorce due to lack of evidence, the spouse of the spouse awarded is entitled to half of this amount.
