In principle, the spouses manage the common patrimony together, and each spouse manages their own property in the interest of the family.
However, for certain acts the agreement of both spouses will be required, regardless of their matrimonial regime.
Thus, whether it is an own or common property, it will require the agreement of both spouses to sell or mortgage, a property such as the family home.
But it can happen that one of the spouses is unable to express his will, or even that he takes decisions that endanger the interests of the family, in particular if he squanders, dissipates, lets wither or misappropriates the common goods. or its own property.
Whenever a spouse shows shortcomings that could harm the family interest, his spouse will be authorized to act alone.
Who says "interest of the family" thinks JAF, but who says "incapable of manifesting his will" thinks guardianship judge. This is the reason why it will be the latter, and not the JAF, who will be competent to manage these intra-family crisis situations. A competence reaffirmed by the new system for the protection of the interests of the family: the family authorization, established by ordinance n ° 2015-1288 of October 15, 2015.
Namely: The JAF will however be competent when a spouse expressly refuses to perform an act and his refusal is not justified by the interests of the family. In this case, the husband is not incapable of manifesting his will, does not leave his property abandoned, is not absent ... He is not in default, he simply refuses to perform an act. in all conscience.
When a blockage occurs within the couple, several options are possible. One of the spouses will be given the power to act alone by entering the guardianship judge or the Tribunal de Grande Instance.
The guardianship judge
The protection regime for an adult
If one of the spouses is unable to act, his / her spouse can apply to the guardianship judge and be appointed guardian for his / her spouse.
It should be noted that the opening of a guardianship may cause more harm than benefit to the spouse.
- He must report on his management every year to the Chief Registrar of the District Court
- The joint accounts of the spouses are separated, the bank accounts of the two spouses are clearly separated and the management accounts clearly identified, which requires, if the guardian spouse is not working, to make several transfers from the account of his spouse whose resources provide for family expenses to balance the budget.
In addition, following a strict application of the subsidiarity principle, before opening a guardianship regime, it is necessary to check whether the “primary” matrimonial regime does not sufficiently protect the interests of a married adult.
The so-called “primary” matrimonial regime which is binding on all spouses provides for two distinct procedures defined in articles 217 and 219 of the civil code to manage these crisis situations by granting a spouse the power to act alone.
The judicial authorization of article 217 of the civil code
If it is a question of carrying out a one-off act for which the consent of both spouses is required and one of them cannot, or does not want, to give his consent, it is better to ask the guardianship judge for a additional authorization as provided for in Article 217 paragraph 1 of the Civil Code "A spouse may be authorized to perform alone an act for which the assistance or consent of the other would be necessary if the latter is unable to show his will or if its refusal is not justified in the interests of the family ”.
In this case, the defaulting spouse does not benefit from a protective regime, he is simply represented on an ad hoc basis by his spouse to carry out a specific act.
The applicant spouse must prove by all means that he faces an unjustified refusal. It will therefore be necessary to produce in support of the request a medical certificate made by any doctor (it is not necessary that he be on the list established by the public prosecutor).
It is a graceful procedure, the applicant spouse can act alone without being assisted by a lawyer. He will have to present a request in which will be specified his requests to the judge, the act he plans to pass (sale, rental, mortgage…).
The two parties, unless medical advice to the contrary, are summoned and heard by the judge for an adversarial debate.
The guardianship judge must specify in his decision the act for which the spouse is authorized. The judgment, notified by the registry by registered letter with acknowledgment of receipt, may be appealed within 15 days.
The appeal is made by registered mail addressed to the registry of guardianship, the judge can then either reverse his decision or maintain it and send the appeal to the court of appeal with the file.
With this authorization, the spouse can make deeds of disposal (sell movable or immovable property, etc.) which will be enforceable against the defaulting spouse. Even if the latter has not consented to it, the act will be valid and cannot be called into question.
The judicial authorization of article 219 of the civil code
Article 219 paragraph 1 of the Civil Code provides that if “one of the spouses is unable to express his will, the other may be empowered by justice to represent him, in general, or to certain specific acts, in the exercise of powers resulting from the matrimonial regime… ”.
The defaulting spouse is considered to be prevented but does not lose his legal capacity. This is generally the case where the husband is unable to manifest his illness due to a long illness (mental or physical), a coma, paralysis, absence or a disappearance.
His spouse will be empowered by the guardianship judge to carry out several acts in the interest of the family and allow him to manage the common goods of the couple.
The procedure is free, the husband can seize the judge of guardianship by request, (alone or assisted by a lawyer). He must produce in support of his request a medical certificate and all the documents establishing the impossibility of his spouse to come forward.
The parties are called for an adversarial debate, unless medically impossible, and the judgment rendered will be subject to appeal within 15 days of its notification by the guardianship registry under the same conditions seen above.
This situation is different from the previous one because the judge grants a general mandate to the husband to accomplish all the acts of administration of disposition necessary for the management of the interests of the family. It therefore has the power to act on all of its own or common goods.
So, following the rules of the mandate governed by Articles 1900? of the Civil Code, only the represented spouse is engaged. However, in the event of fault, the spouse who carried out the acts alone may be held liable.
The spouse may also be authorized to act alone by the Tribunal de Grande Instance.
The court of first instance
Two distinct procedures allowing a spouse to act alone are possible before the Tribunal de Grande Instance, everything depends on the matrimonial regime of the spouses.
The cases provided for by articles 1426 and 1429 of the Civil Code are possible in cases where a spouse is "unable to express his will", but also and above all to punish the behavior of the spouse is faulty such as: '' inability to manage property, whether it is one's own or the community, fraud, embezzlement or dissipation of the fruits that a property produces (income from rented accommodation, etc.), letting property wither own or common ...
Community of property regime
Article 1426 of the Civil Code provides that "If one of the spouses is, in a lasting manner, unable to express his will, or if its management of the community certifies incapacity ou fraud, the other spouse can apply in court to be substituted in the exercise of its powers. (…) The spouse, thus empowered by justice, has the same powers as the spouse he replaces; he performs, with judicial authorization, the acts for which his consent would have been required had there not been a substitution. "
Separation of property regime
According to article 1429 of the civil code, “If one of the spouses is, in a lasting manner, unable to express his will, or if he endangers the interests of the family, or by leaving to waste away its own, either in dissipating ou diverting the income that he receives therefrom, he may, at the request of his spouse, be relieved of the rights of administration and enjoyment which are recognized to him by the preceding article. (…) Unless the appointment of a receiver appears necessary, the judgment confers on the applicant spouse the power to administer the property of the relinquished spouse, as well as to collect the fruits thereof, which must be applied by him to the expenses of the marriage and the surplus used for the benefit of the community. From the request, the relinquished spouse can only have bare ownership of his property. "
Articles 1426 and 1429 of the Civil Code allow a spouse whose spouse is incapacitated to manifest his will in a lasting manner or that he puts the interests of the family at risk, to be substituted for him in order to exercise alone the management of its assets.
The differences with the authorization of article 217 and the authorization of article 219 of the civil code
The cases of openings
The husband is not in a coma, nor absent… but subject to incapacity, a lack of discernment which harms both the interests of the family and his own. It can be a person suffering from addictions (compulsive shopping, games, drinks, drug addiction ...), being under the influence of a person, of a sect ... which push him to swallow up his income and those Household.
Even if it is a graceful procedure, legal representation is compulsory before the TGI.
The limits of the mandate
The mandate given only allows acts of administration of the property of the defaulting spouse and not acts of disposal. The husband will be empowered to administer and collect the fruits (the income produced by the goods, such as rents, etc.) and to allocate them to the community, but not to sell or mortgage the goods belonging to them or jointly with the spouse. 'failing husband.
Publicity of the decision
The request will be published in the civil register and the judgment of the TGI will be entered in the margin of the birth certificate of the defaulting spouse.
The end of the divestiture
It will be up to the spouse deprived of power to request in court that his rights be restored or their restitution, by proving that their transfer or "the cause which had justified his relinquishment no longer exists".