Divorce whether amicable or judicial entails, concurrently or not, liquidation of matrimonial regime and partition of assets of separating couple. In presence of immovable assets, intervention of a notary is mandatory but in all cases, it is useful to take advice from this knowledgeable professional.
What does liquidation of matrimonial regime by notary consist of
Matrimonial regime is set of rules governing patrimonial relations of spouses and determining fate of assets during marriage.
With help of information provided by clients, notary begins by drawing up exhaustive quantified inventory of their assets (active) and possible debts (passive).
This statement will allow him to determine shares of each spouse, in value, each regime obeying own rules: this is called liquidation.
Once rights of parties determined, assets will have to be distributed between them, and thus put end to community or indivision, this is partition.
Matrimonial regimes and partition
Regime of community of property reduced to acquests (marriage without marriage contract)
Each spouse recovers his personal assets (assets owned before marriage or received by donation and succession) and has right to half of assets acquired during marriage (furniture, bank accounts, house, apartment...).
notary must reconstruct possible fund movements between personal estates of spouses and common assets of couple. If one personal estate has been impoverished in favor of community (or vice versa), it has right to reward.
To provide proof of these movements, it is advisable to provide in particular: invoices of works paid by community on personal asset of a spouse (or inversely), monthly payments of personal loans of a spouse reimbursed by community, deeds of acquisition of assets financed with private funds and common funds.
Regime of separation of property
Spouses recover their respective personal assets as well as their share of undivided assets.
Liquidation of Joint Ownership
In case of assets acquired in indivision, account of indivision will also have to be established. Are spouses owners by half or have unequal shares? Have they financed works, loans according to these proportions? Failing that, possible claims against indivision will have to be identified.
Regime of participation in acquests
Spouses each recover their personal assets, while acquests constituted by difference between starting estate and final estate of couple will be shared by half.
If these distribution rules are clear, their implementation may prove complex because spouses do not always observe strict separation of their estates (financing for example purchase of common asset with personal funds.
The notarial conciliation mission
Magistrate of amicable matters, notary will clearly explain situation to each spouse so they can find agreement on partition of their assets.
At what time are liquidation and partition operations done?
If spouses choose to divorce by mutual agreement without judge
An agreement is established by private deed signed by each of them, and countersigned by their 2 lawyers. It must imperatively include liquidative state of matrimonial regime and partition of assets (or its maintenance in indivision, by agreement). Notary specialist in question is qualified to help spouses find balanced solutions preserving their respective interests. When liquidation relates to assets (immovable) subject to land registration, his intervention is mandatory (C. civ. art. 229-3).
In framework of contentious divorces
Divorce request entails 'under penalty of inadmissibility, a proposal for settlement of pecuniary and patrimonial interests of spouses' (C. civ. Art. 252).
In framework of provisional measures, Family Affairs Judge may, 'designate a notary with view to drawing up draft liquidation of matrimonial regime and formation of lots to be partitioned' (C. civ. Art 255, 10°).
Partition can therefore be carried out:
At same time as divorce:
- — if spouses agree: 'spouses may, during divorce proceedings, enter into all agreements for liquidation and partition of their matrimonial regime' (C. civ. art. 265-2).
- — failing partition agreement, judge rules on requests relating to liquidation, settles possible remaining disagreements and may approve draft drawn up by appointed notary (C. civ. Art. 267).
After divorce proceedings:
- — amicably: spouses may liquidate and partition amicably before notary;
- — by contentious liquidation partition procedure. Notary may then be designated by judge to proceed with liquidation partition operations.
Cost of partition
Statutory Division Duty
If partition has been subject of written deed (notarial or not), it gives rise to payment of partition duty of 1.1% (since 1 January 2022) for benefit of Treasury, calculated on value of assets to be partitioned, deduction made of liabilities.
In presence of immovable asset and therefore deed established by notary, following expenses must be foreseen besides partition duty:
- — a land security contribution equal to 0.10% of value of immovable assets, due to land registration service;
- — notary fees, proportional to value of partitioned assets (without deduction of liabilities);
- — Finally, fees for formalities accomplished by notary (examples: request for civil status deeds, establishment of copy) and disbursements.
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