Marriage has legal consequences that often go beyond the personal sphere, particularly in financial terms. When a couple face difficulties in honouring their commitments, the question of who is responsible for what debts, and more particularly for credit, quickly becomes a source of concern and conflict. Article 220 of the French Civil Code establishes a principle of solidarity between spouses for day-to-day expenses, a mechanism that protects creditors but can prove tricky for spouses. Understanding the contours and limits of this rule is essential for any married couple, as a debt incurred by one spouse may, under certain conditions, be binding on both. The aim of this article is to demystify how this solidarity works, looking specifically at the case of loans, which are governed by complex rules. For a broader view, our general guide to paying off credit as a couple offers a first approach to the subject.
The principle of joint and several liability of spouses for household debts
At the heart of the primary matrimonial property regime, i.e. the set of rules that apply to all married couples regardless of their contract, article 220 of the Civil Code sets out a fundamental principle. Its first paragraph states that : "Each of the spouses has the power to enter alone into contracts for the maintenance of the household or the education of the children: any debt thus contracted by one binds the other jointly and severally.
In practical terms, this means that for a certain category of debts, known as "household" debts, both spouses are considered as a single debtor in the eyes of the creditor. The creditor can then claim payment of the full amount due from either spouse, without having to worry about who actually initiated the expenditure. The aim of the law is clear: to strengthen the security of day-to-day transactions by offering third parties (traders, service providers) a broader pledge, which includes the assets of both spouses.
The scope of this solidarity covers expenses necessary for family life. Case law has clarified that this includes the cost of food, the cost of the family home (rent and utilities), energy bills, outstanding health expenses, children's school fees and home insurance premiums. The spirit of the text is to target everyday activities that benefit the household as a whole.
However, the law provides safeguards to prevent this mechanism from becoming an instrument of abusive indebtedness. Solidarity is excluded in two main situations. Firstly, for "manifestly excessive" expenses. Excessive expenditure is assessed on a case-by-case basis, taking into account the household's lifestyle, the real purpose of the expenditure and sometimes the good or bad faith of the creditor. For example, the purchase of a valuable piece of jewellery by a couple on a modest income could be deemed excessive. On the other hand, joint and several liability does not apply to investment debts, such as the purchase of a rental property or the subscription of shares in a company. These acts are not considered as "household maintenance", but as the building up of assets. It should be noted that this legal solidarity is specific to marriage and does not apply in the same way to other forms of union; we detail these differences in our article on credit obligations for PACS partners and cohabitees.
Loans: exceptions and conditions for joint and several liability under article 220
While the principle is relatively clear for day-to-day purchases, the issue of borrowing is much more complex. The nature and amount of a loan can quickly jeopardise a household's financial equilibrium. That's why paragraph 3 of article 220 of the Civil Code gives them special treatment, making a crucial distinction depending on the consent of the spouses.
Loans taken out with the agreement of both spouses
When both spouses take out a loan, joint and several liability is the rule, subject to one essential condition: the loan must be for household purposes. In other words, it must finance an expense relating to the upkeep of the household or the education of the children. In this case, the amount does not have to be "modest". For example, credit used to purchase a family car that is essential for daily commuting or to finance energy-efficiency renovations to the main residence will be jointly and severally binding on both spouses, even if the amount is substantial, provided that it remains consistent with the couple's lifestyle.
The spouse's consent must be genuine, but case law sometimes allows it to be implied, although caution is advised. Joint signature of the loan offer is the most obvious proof. In the absence of a signature, the simple fact of not objecting to instalments being taken from a joint account could, in certain very specific circumstances, be interpreted as consent, but this is a matter for the courts to decide.
Loans taken out by just one spouse
This is where the conditions become considerably stricter. For a loan taken out by just one spouse to be jointly and severally binding on the other spouse, two conditions must be met cumulatively:
- The loan must be for modest sums. The notion of "modesty" is not defined by a specific amount. It is assessed on a case-by-case basis by the court, which compares it to the household's income and assets. A credit of 2,000 euros may be considered modest for one couple, but not for another.
- These sums must be for everyday needs. This concept is more restrictive than "household maintenance". It refers to imperative and immediate expenses, such as meeting an unexpected health expense, repairing an essential household appliance or paying an urgent bill. The purchase of a new computer for leisure purposes, even for a modest amount, would probably not qualify as "necessary for everyday needs".
If one of these two conditions is not met, joint and several liability is ruled out. The spouse who signed the credit agreement alone will be solely liable for repayment.
Forged signatures are a frequent occurrence. If a spouse forges the signature of his or her partner to obtain credit, the latter is in principle not liable. He or she may contest the signature and request a handwriting verification procedure. However, joint and several liability may still be accepted if the judge considers that the loan, although taken out fraudulently, met the conditions of being a modest sum necessary for everyday needs. In this case, the fraud has no effect on the repayment obligation. The bank may also be liable if it was negligent in failing to carry out the usual checks on the authenticity of the signatures.
Scope and limits of household solidarity
Understanding the joint and several liability set out in article 220 requires an understanding of a fundamental legal distinction: that between an obligation to pay a debt and a contribution to that debt. To explore this concept in greater depth, please see our article on obligation and contribution to debt in a couple.
- The obligation to debt concerns the relationship between the spouses and the creditor. It determines the assets from which the creditor can claim payment. Household solidarity comes into play at this stage: the creditor can sue either spouse for 100 % of the debt.
- Contribution to the debt concerns the relationship between the spouses themselves. It determines who bears the final burden of the debt. By default, household debts are borne by the community (for spouses married under this regime) or in proportion to each spouse's means. If a spouse has repaid a joint and several debt on his or her own, he or she can take action against his or her spouse to claim his or her share.
The impact of joint and several liability varies according to the matrimonial property regime. For spouses married under a regime of separation as to property, where each spouse is in principle solely liable for his or her own debts, article 220 constitutes the major exception. For those married under the community property regime, joint and several liability extends creditors' pledge to the non-contracting spouse's own property, which is not normally the case for other debts.
Solidarity does not cease with a simple de facto separation. It continues as long as the marriage has not been dissolved and the divorce has not been recorded in the civil status registers, at which point it becomes enforceable against third parties. Household debts incurred by one spouse during the divorce proceedings may therefore still be binding on the other.
Finally, the so-called "Hamon" law of 2014 introduced an additional limit. Solidarity is set aside, even for modest loans needed for everyday needs, if the cumulative amount of several such loans becomes "manifestly excessive given the household's lifestyle". This provision was designed to combat over-indebtedness. In practice, it is difficult to apply. In the absence of a "positive credit file" in France (a register centralising all personal loans), it is difficult for a lender to assess a household's overall indebtedness and for a judge to determine which loan is "too much" and causes the household to fall into excessive debt. This protection therefore remains relatively effective.
The management of household debts and the scope of article 220 of the Civil Code are complex issues with significant financial consequences. An erroneous analysis can lead to your assets being committed for a debt that you did not originate. To obtain a legal advice tailored to your personal situationIt is essential to consult a competent lawyer in this area.
Sources
- Civil Code (in particular articles 220, 1409 to 1415, 1536)
- Consumer Code
- Law no. 2014-344 of 17 March 2014 on consumer affairs (known as the "Hamon Law")
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