Buying property during a divorce

Can we purchase a property individually when you are in divorce procedure, married under community of property?

Article 1401 of the Civil Code states:

“The community actively consists of the acquests made by the spouses together or separately during the marriage (…)”.
Any goods acquired by a spouse subject to the community regime is a common good.
The community lasts as long as the marriage lasts. Until the divorce is pronounced, the goods purchased by one of the two spouses can be considered as common and must therefore be shared.
It is advisable to wait for the procedure to be completed.
Property acquired before the liquidation of the divorce, even if it is acquired by one of the spouses alone, the ownership of the property may be called into question.

It is therefore essential to obtain the written consent of the spouse, an agreement which will specify in particular that the spouse who is not purchasing the property renounces all matrimonial advantages in respect of this acquired property and that the property will be the property of the acquiring spouse when the divorce is pronounced. The non-acquiring spouse will therefore have to intervene in the deed.

DIVORCE RETROACTIVITY MECHANISM:

262-1 of the Civil Code states:

“The divorce judgment takes effect in the relationship between spouses, with regard to their property:

• when it is pronounced by mutual consent, on the date of approval of the agreement regulating all the consequences of the divorce, unless this agreement provides otherwise.
• when it is pronounced for acceptance of the principle of marriage breakdown, for permanent alteration of the marital bond or for fault, on the date of the non-conciliation order”.

The acquired property will be retroactively considered to be specific to the acquiring spouse if the acquisition is made:

• In the context of a divorce by mutual consent: during the period between the date set in the divorce agreement regulating the consequences of the separation and its approval by the judge at the divorce hearing.
• Or, in the context of a contentious divorce: between the date of the non-conciliation order and the divorce judgement.

The possibility for one of the spouses to acquire property during the proceedings is therefore based on this retroactivity permitted between spouses of the property effects of their divorce. By setting its date of acquisition according to the chosen procedure and of the progress of this one, the spouse will be able, if the divorce is then definitively pronounced, seek to retroactively reclassify the acquired property, since this one will be considered to have acquired it at a time when the community was dissolved.

DECLARATION OF COMPLETION MECHANISM

If the purchaser declares, in the deed of acquisition, to use funds belonging to him by donation, inheritance or as coming from own property, the new property acquired by reinvestment will always be personally owned by the purchaser.
The conditions for this are set out in article 1434 of the Civil Code.

BUT UNCERTAINTY OF THE RESULT

PROBLEM OF WHEN TO BUY

Creditors may consider this to be common property, which has become undivided following the divorce.

Thus, since the retroactivity of the effects of the divorce is not opposable to the buyer, the latter can seize this property in the patrimony of the divorce, even after the divorce, to be paid a debt held against the buyer.

In practice, the acquisition of real estate by one of the spouses during the divorce proceedings is therefore strongly discouraged.

In any event, the Notary must take all precautions to prevent the property acquired from falling into the community. One must above all inform the buyer in advance and in writing only with regard to third parties, the matrimonial regime remains until the publication of the divorce in the civil status registers, even in the event of postponement of the date of dissolution.

The property acquired by a spouse, between the dissolution of the matrimonial regime and the date of publication, therefore remains in the pledge of the creditor of the community.