In the event of a divorce or following a combination of circumstances, you learn that your spouse has taken out credit without notifying you. You wonder. Does he have the right to use our joint account to reimburse this loan? What happens if he no longer pays the monthly payments?
Am I required to repay this debt in its place? Can the bank demand that I put my hand in my pocket? There is no single answer to these questions. It all depends on the use of the loan and the amount borrowed, but also on the ties that unite you to your spouse.
The spouses are in solidarity with household debts
If you are married, the principle of the solidity of household debts applies. Article 220 of the Civil Code provides that each of the spouses has the power to enter into contracts alone which have as their object the maintenance of the household or the education of the children: any debt thus contracted e by one obliges the other jointly.
In other words, if your spouse has taken out a loan in order to meet the needs of the household with payment of rent, invoices, equipment of the home, school fees or clothing expenses to the organization who has made the loan may actually ask you to put your hand in the pocket.
The law does, however, incorporate some exceptions to this principle of solidarity. You are therefore not required to reimburse if the expenses appear to be manifestly excessive with regard to the living standard of the household. The solidarity of the spouses is also apprehended with regard to the usefulness of the operation. For example, significant costs are not considered excessive if they prove to be essential.
Personal debt: seizable common assets
Apart from household debts, the commitment of the spouse depends on the matrimonial regime chosen by the spouses. In the case of separation of property, it is quite simple. Everyone remains responsible for the debts they contract alone, sums up Sandrine Perris. On the other hand, when the spouses have not written a marriage contract and therefore adopt the community of property, their common assets are committed.
The result, in case of non-repayment, the bank can seize the borrower’s own property as well as the property he holds with his spouse. The personal property of the latter remains protected. Article 1418 of the Civil Code indeed provides that when a debt has entered into the community of one of the spouses, it cannot be prosecuted on the other’s own property.
Of course, if you borrow from two, you are committed to all of your property regardless of your marital status. Moreover, to protect themselves and cut short the problem of matrimonial regimes, banks often ask spouses to be co-borrowers, notes the lawyer for the CLCV.
Concubinage and Pacs: what solidarity?
In cohabitation, everyone is free to manage their property and is responsible for debts contracted in their name. Cohabiting partners are neither obliged to help each other, nor to pay for household debts. On the other hand, pass people fall under the umbrella of Article 515-4 of the civil code. Therefore, like married couples, partners are jointly and severally liable towards third parties for debts contracted by one of them for the needs of everyday life.
Litigation with his bank: what to do?
So much for the theory. But, in practice, how do you react when a bank asks you to repay a loan contracted by your (ex) spouse? First advice, do not pay blindly.
Consumers do not know the civil code by heart. It is therefore obvious that from the moment there is a debt and a need for recovery, some establishments will try to recover the amount including from the partner whose responsibility is not yet committed e, emphasizes Sandrine Perrois from CLCV.
In the event of a request for recovery, the lawyer advises contacting a consumer association to find out their rights. Then, if the amicable interventions of the association or in the context of a bank mediation stumble, you will have to go to justice.