For many couples, opening a joint account is a practical way of managing day-to-day expenses. However, this ease of management can turn into a source of major legal risks when one of the joint account holders incurs a personal debt. Seizure of this account by a creditor then raises complex issues, particularly when the debt is linked to the credit repayment. The protection afforded to the non-debtor spouse will depend entirely on the spouses' matrimonial property regime and the nature of the debt. Understanding these mechanisms is therefore essential if you are to anticipate and defend yourself against a seizure that could affect all the household funds.
Joint accounts: definition and general rules
A joint account is a bank account opened in the name of several people, known as co-account holders. Its main feature is the principle of active and passive joint liability. Active joint liability means that each co-account holder can use the funds available in the account as if he or she were the sole owner, without needing the authorisation of the others. Passive joint and several liability means that each joint holder is responsible for the entire debit balance of the account.
From a legal point of view, the joint account is not specifically defined by the French Monetary and Financial Code. Its operation is based on an agreement between the bank and the joint account holders. This agreement must explicitly provide for joint liability, because under article 1310 of the Civil Code, joint liability cannot be presumed. Without a written agreement, an account cannot be considered joint.
It is precisely this solidarity that creates difficulties in the event of seizure. When a creditor of only one of the joint account holders seeks to recover his or her debt, he or she may attempt to seize the joint account. The risk then is that funds belonging to the non-debtor spouse, or joint funds, may be seized for a debt that does not concern them. The rules applicable to protect against this risk vary considerably depending on the couple's matrimonial property regime.
Attachment to a joint account under Community law
For spouses married under a community regime, such as the reduced community of acquests, which is the default legal regime, the seizability of the joint account depends on the nature of the debt: is it a community debt or a debt specific to one of the spouses?
In principle, article 1413 of the Civil Code states that debts contracted by a spouse during the marriage may be pursued against joint property. This means that a creditor can seize the debtor spouse's own accounts as well as joint accounts, including the joint account. The funds deposited in these accounts are presumed to be community acquests, in accordance with article 1402 of the Civil Code.
However, the law does provide some protection. Article 1414 of the Civil Code states that the earnings and wages of the non-debtor spouse cannot be seized, unless the debt was incurred for the maintenance of the household or the education of the children. In practical terms, if a creditor seizes a joint account funded by the salaries of both spouses for a non-household debt, a sum equivalent to the last salary paid to the non-debtor spouse must be left available.
The situation is more complicated for own debts. These include debts incurred before the marriage or debts arising from a loan taken out by one spouse without the other's consent. This is where thearticle 1415 of the Civil Code plays an essential protective role. Under this law, a loan or guarantee taken out by only one spouse is binding only on his or her own property and income. The community is therefore not bound.
In this case, the case law is very clear: the creditor may only seize the joint account if he can prove that the funds in it are the debtor spouse's own income. The Court of Cassation has ruled on several occasions that the burden of proof lies with the creditor. If he fails to identify the personal origin of the funds, the seizure must be cancelled. This is very strong protection for the couple, as in practice it is often impossible for an outside creditor to trace the origin of the various sums credited to a joint account.
Attachment to a joint account under a separation of property regime
Under the regime of separation as to property, each spouse retains ownership of his or her personal property and remains solely liable for his or her debts, as set out in article 1536 of the Civil Code. The principle is therefore one of strict separation of assets and liabilities.
However, the joint account introduces a significant nuance. Article 1538 of the Civil Code establishes a presumption of joint ownership: property over which neither spouse can prove exclusive ownership is deemed to belong to them jointly, each for half. This presumption applies directly to the balance of a joint account.
The consequences for a creditor are direct. When seizing a joint account held by spouses separated by property, the creditor can, by default, only seize half of the credit balance. Case law holds that it is up to the creditor to prove that his debtor's share of the funds is greater than 50 %. If he cannot provide this proof, the seizure will be limited to half of the available sums, the other half being protected as the property of the non-debtor spouse.
There is, however, one major exception in the case of household debts, which are governed by thearticle 220 of the Civil Code. This text, which comes under the primary regime applicable to all married couples, establishes solidarity between the spouses for expenses relating to the upkeep of the household or the education of children. This solidarity applies even where there is a separation of property. For this type of debt, a creditor can therefore seize the entire balance of the joint account, as both spouses are considered joint and several debtors.
How can you protect your joint account in the event of a debt?
Managing a joint account, although convenient, requires a certain amount of vigilance to limit the risks in the event of financial difficulties for one of the spouses. A few reflexes can provide extra protection.
The first strategy is to ensure that funds are clearly identified. As the burden of proving the origin of funds can be decisive, keeping separate personal accounts for business income, inheritances or gifts received is a prudent measure. Paying these sums into personal accounts before transferring them to the joint account for joint expenses only ensures that they can be traced, which will be invaluable if a seizure is challenged.
Separating the uses of the accounts is also good practice. Keeping the joint account for day-to-day household expenses (rent, bills, shopping) and using personal accounts for professional activities, investments or strictly personal expenses makes it possible to distinguish between community or household debts and personal debts.
Finally, if you are notified of an attachment order on your joint account, it is vital to react quickly. A lawyer can help you check the validity of the procedure and, if necessary, challenge it before the enforcement judge. The lawyer will be able to raise the relevant arguments depending on your matrimonial regime: invoking the protection of article 1415 of the Civil Code in a community regime or the presumption of joint ownership of article 1538 in a separation of property regime. This is often the only way to obtain release of the seizure and protect the funds that should not be liable for the debt.
If you are faced with a seizure or if you want to anticipate these risks, a support from a lawyer with expertise in credit law is a protective approach. Our firm can analyse your situation to effectively defend your rights.
Sources
- Civil Code (articles 220, 1310, 1402, 1413, 1414, 1415, 1536, 1538)
- Code of civil enforcement procedures
- Court of Cassation case law (in particular Civ. 1ère, 3 April 2001, no. 99-13.733; Civ. 1ère, 20 May 2009, no. 08-12.922; Civ. 1ère, 15 June 2017, no. 16-20.739)
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