5 What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
Divorce is a cause of dissolution of matrimonial community of property. If the spouses are married under the legal regime, each spouse retakes possession of his or her separate property (Art. 1467 CC) and common property is divided equally between them (Art. 1475 CC). Prior to such division, an account of the reimbursement (Art. 1468 CC) due form the community property to each spouse (art. 1433 CC) or by one of the spouses to the community property (Art. 1437 CC). Where the spouse is a debtor, his or her share in the distribution of common property is reduced. Where he/she is a creditor, he/she may exercise his or her right by appropriating common property.
5.2. Who is liable for existing debts after the divorce/separation?
In the event of divorce, each spouse remains liable for debts that were his or her separate debts during the marriage. A spouse who has contracted a common debt remains fully liable for such a debt (Art. 1482. CC). The other spouse is liable for half of the debt but may not be sued for an amount exceeding the value of the common property allocated to him or her (Art. 1483 CC).
5.3. Does one spouse have a claim to an equalisation payment?
In the event of partition of the community property, any reimbursements between the spouses and the community property are taken into account (see 5.1 above)
5.3.1. In case of a property regime of the community of surplus:
- Does the claim have to be satisfied by means of a payment or in kind?
- How is the claim assessed?
- What is the amount of the equalisation payment?
- When is the claim prescribed?
In the participation in acquisitions regime, there is no community or common property. When the regime is dissolved, the spouse who has accumulated less wealth has a simple personal claim against the other. He/she may not exercise a right to a settlement in kind, unless otherwise agreed by both spouses or provided by a court ruling (Art. 1576 CC). This claim for participation is equal to half of the difference between the wealth of each spouse accumulated during the regime (Art. 1575 CC), taking into account their original assets and final assets (Art. 1570-1574 CC). The same rules apply when the couple had opted for the optional Franco-German participation in acquisitions regime. The application for participation is time-barred after three years from the dissolution of the regime (Art. 1578 paragraph 4 CC).
5.3.2. In other cases (not community of surplus). Which ones?
There is not more community or common property in the separation of property regime. However, a detailed account can be kept between the spouses, in particular where funds owned by one spouse have served to enrich the other.
