The management of debts within a couple married under the regime of legal community is a frequent source of questions and tensions, particularly in the event of separation. When a loan is taken out, who has to pay it back? And what assets can a creditor, such as a bank, claim payment from? French law provides nuanced answers by distinguishing two fundamental but often misunderstood concepts: obligation to the debt and contribution to the debt. Understanding these mechanisms is essential if you are to anticipate the financial consequences of a commitment and defend your rights. The aim of this article is to clarify these concepts and their practical impact, based on the complete guide to paying off credit as a couple.
The fundamental distinction: debt obligation vs. debt contribution
To properly understand the fate of debts in marriage, the problem must be broken down into two stages. The first stage is the obligation to pay the debt, sometimes called the "provisional liability". The second is the contribution to the debt, or the "definitive liability".
The obligation to pay a debt concerns the relationship between spouses and their creditors. The question is simple: what assets can the creditor sue against? Is it the debtor's own property, his or her spouse's property, or the couple's joint property? This stage determines the extent of the creditor's pledge. This is the immediate perspective, the one that interests the bank when a debt goes unpaid.
Contributions to the debt settle the accounts between the spouses. Once the creditor has been paid, it is necessary to determine which assets should bear the final burden of the debt. Is it your own assets or the community assets that will ultimately be impoverished? This question arises mainly at the time of dissolution of the matrimonial property regime, by divorce or death. If the estate that paid the debt was not the one that was to bear it definitively, a set of accounts, called "rewards", will restore the balance. This distinction is of major practical interest. A spouse can have his or her joint property seized for a debt owed by his or her spouse (obligation), while at the same time having the right to be "reimbursed" by the spouse when the community is liquidated (contribution).
The obligation to pay the debt: the rules governing the pursuit of creditors
The extent of assets that can be seized by a creditor depends on the origin and nature of the debt. The Civil Code establishes a hierarchy of protection for the assets of spouses, and particularly for joint assets.
The general principle of commitment of joint property
Under article 1413 of the Civil Code, any debt incurred by a single spouse during the marriage may be pursued against his or her own property and income, but also against all joint property. This principle is designed to protect creditors by providing them with a broad pledge. This means that a major purchase made by your spouse, even without your direct agreement, could potentially expose the assets you acquired jointly during the marriage.
However, there are important limits to this principle. The most notable of these concerns the earnings and wages of the non-debtor spouse. Article 1414 of the Civil Code stipulates that this income cannot be seized by your spouse's creditors. This is an essential safeguard: your salary is protected from the personal debts of your husband or wife.
The major exception for loans and guarantees
The most protective rule for the community is undoubtedly article 1415 of the Civil Code. This stipulates that for a loan or guarantee taken out by only one spouse, only his or her own property and personal income are committed. In practical terms, community property is protected. For the community to be committed, the spouse's express consent is essential. This consent must be clear and cannot be inferred from mere knowledge of the transaction. A spouse who consents to his or her spouse's loan is only committing the community, not his or her own property. The complexity of this rule and the issues involved justify an in-depth examination, as detailed in our article on the application of article 1415 of the Civil Code.
The special case of joint and several household debts
Another exception, this time in favour of the creditor, is set out in article 220 of the Civil Code. This introduces joint and several liability for debts incurred for "the maintenance of the household or the education of children". When a debt is classified as a household debt, both spouses are jointly and severally liable. The creditor may then pursue payment from the couple's entire assets: each spouse's own assets and all joint assets, including each spouse's earnings and wages.
This solidarity applies to loans, but under strict conditions. The loan must be for modest sums needed for day-to-day living. Judges assess whether a loan is "modest" on a case-by-case basis, taking into account the household's lifestyle. A consumer loan for the purchase of household appliances may be considered to be modest, whereas a loan for a rental investment will not. The duality between obligation and contribution to household debts under article 220 reveals all the subtleties of matrimonial law.
Contribution to the debt: final settlement between spouses
Once the issue of creditor proceedings has been resolved, matrimonial law turns to the final disposition of the debt. The guiding principle is the correlation between assets and liabilities: the estate that has benefited from an expense must bear the final cost.
The reward mechanism
The main tool for ensuring this balance is the mechanism of "rewards", governed in particular by article 1469 of the Civil Code. A reward is an indemnity owed by one estate to another. If joint funds have been used to repay a spouse's personal debt (for example, a student loan taken out before the marriage), the community will be entitled to a reward from that spouse. Conversely, if a spouse has used his or her own funds to finance a joint expense (for example, work on the joint main residence), he or she will be entitled to a reward from the community.
These accounts are only cleared at the time of the settlement of the estate, i.e. at the time of divorce or death. They enable the financial flows that occurred during the marriage to be corrected to ensure an equitable division.
Personal debts and final joint debts
What determines whether a debt is definitively personal or joint?
Debts contracted in the exclusive interest of one spouse remain his or her sole responsibility. This is the case for debts incurred prior to the marriage or debts against an inheritance that he or she has received. Similarly, a debt arising from a criminal conviction or personal fault will be borne by the spouse concerned.
Conversely, debts incurred in the interests of the community are borne by the community. Article 1409 of the Civil Code lists these debts. They include all debts contracted jointly by the spouses, but also household debts and all debts contracted by a single spouse, unless it can be proved that they were contracted in his or her exclusive personal interest. Case law holds that a loan taken out by only one spouse without the consent of the other (which therefore does not commit the community at the obligation stage) is still a joint debt at the contribution stage, unless it can be proved that it served a strictly personal interest.
In the case of loans, there is a subtle difference: where the community has repaid a loan used to acquire or improve a spouse's own property, the compensation due to the community is in principle equal to the capital repaid. The interest, considered to be the consideration for the enjoyment of the property from which the community has also benefited (by living in the property, for example), remains payable by the community.
Practical applications and consequences for the couple
To illustrate these rules, let's look at a few concrete situations. A spouse takes out a €20,000 loan on his own to buy a classic car, which is his personal passion. If he fails to repay the loan, the bank will only be able to seize his own property and wages, because his spouse's consent was not given (application of article 1415). At the time of the divorce, if joint funds were used for the monthly repayments, the community will be entitled to a reward equal to the capital repaid, as the debt was contracted in its personal interest.
Now let's imagine that the couple take out a joint mortgage to buy their main home. Both spouses are committed. The bank can seize all their assets (own and joint). The debt is joint in terms of both obligation and contribution. There will be no settlement of accounts at the time of liquidation.
These mechanisms, although logical, can become a source of complex disputes in the event of separation. Proving the personal interest of an expense, calculating rewards or classifying a household debt are all points that require a precise legal analysis of the couple's facts and financial flows. Anticipating these issues, in particular by keeping bank documents and proof of expenses, can avoid many conflicts. A lawyer can help sort out these situations and ensure that everyone's rights are respected when the matrimonial property regime is wound up.
The distinction between obligation and contribution to the debt is the cornerstone of liability management under community law. Misunderstanding these rules can lead to unpleasant surprises and major financial losses. If you are facing difficulties relating to loans taken out during your marriage, or if you are anticipating a separation, a lawyer can help you. legal advice on managing matrimonial liabilities is essential to assess your situation and defend your interests. Our firm is at your disposal to analyse your case and suggest an appropriate strategy.
Sources
- Civil Code: article 220 (household debts).
- Civil Code: articles 1409 to 1418 (rules governing community liabilities).
- Civil Code: article 1469 (calculation of rewards).
EN 
FR