French divorce and the matrimonial home

We know all too well how much time, effort and money goes into our French homes. So it is not surprising that one of the most heated issues in French divorce is the matter of who gets the keys to the Matrimonial Home. In a divorce this happens twice. First, there is the question of which partner is allowed to use the home during the divorce proceedings, a process that can take up to two years. And then there is the question of who will own the property after the divorce is completed. Both can be complicated. During the proceedings the Judge will issue an Order (Ordonnance de Non Conciliation or ONC) with various temporary measures (Mesures Temporaires) and among these will be his or her ruling as to who will be allowed to stay in the home. Several criteria will determine the Judge’s decision. Paramount will be the children; the judge will routinely allow the children to stay in place so as not to upset their environment – school, friends, home – any more than necessary. In that case the parent who stays with the children, usually the mother, will stay in the house. If there are no children, several other criteria will come into play. Which of the two individuals will have the most difficulty in finding a new residence? Does either spouse use the home for work or business? Who owns of the property? Does either spouse have serious health issues? However, in the absence of children, the temporary residence in the house is not always free of charge; where both names are on the deed, the judge often orders the person residing in the home to pay rent to the spouse who departs. There is one important benefit to staying in the house. All things being equal, where each party wants to, and can afford to, buy the other person’s share, the judge often will lean toward giving the home to the person who occupies it during the temporary proceedings. The residing spouse then may have to pay the departing partner for his or her share in the home. Turning to the question of permanent measures the judge will appoint a notaire to prepare a proposed liquidation of the matrimonial assets for the agreement of both parties. This is called the récompense between the spouses, and is an accounting exercise. The notaire will assess the state of accounts between the parties, i.e., who paid the purchase deposit, who paid the mortgage, who paid the renovation, and also under what matrimonial régime were the spouses married. Based on this the notaire will determine the percentage share of each party in the home. The house is then valued so that one of the two spouses can pay for the share of the other. Alternatively, the property is sold and the proceeds distributed according to the determined shares. (With that in mind, when the marriage is going well, it pays to keep a careful accounting of who pays the deposit, loans, and renovations on a French home. Keep track of your financial participation in the home. If the €60,000 deposit on a €600,000 Euro home comes from a bank account with the name of one spouse, then the notaire may apportion the first 10% to that spouse, depending on the matrimonial regime.) If there is no agreement, then the Judge will rule on the division of assets (usually along the lines of the notaire’s accounting.) Additionally, a much greater element is thrown into the equation – alimony. In some extreme cases, and regardless of whether the poorer spouse has ever contributed to the home costs, he or she may still obtain the matrimonial home as part of the divorce settlement, or at least the right to live in it for the rest of his or her life (usufruit). Take the stereotypical example where the husband is a plastic surgeon, or banker, in London, is in perfect health and is divorcing his wife of 20 years who gave up her career as news broadcaster to raise their three children. The judge will, in this case, seek to compensate her for the discrepancy in their future incomes. He can do this through monthly alimony payments to the wife, a one-time lump sum, or a mixture of the two. Where the husband has capital or assets, or is likely to inherit from wealthy parents, the French judge will always favor the lump sum. The husband’s share in the house will often be part of the lump sum payment. As always, a little information can be a dangerous thing, so please consult your avocat before drawing any hard conclusions on the fate of your matrimonial home.