Debt between spouses: everything you need to know about solidarity

In 1804, the married woman had the status of an incapable person (like a minor). But she benefited from a tacit mandate which allowed her to act on behalf of her husband to perform acts relating to household maintenance (shopping at the grocery store, etc.).

In 1965, this mandate becomes legal and reciprocal: Each of the spouses is supposed to have received the authorization of his spouse to manage and spend the household money.

From now on, according to article 220 of the civil code, the spouses are united: They represent each other and mutually engage in all acts of everyday life.

Law n ° 2010-737 of July 1, 2010, required that this article be proclaimed aloud by the mayor at the time of the celebration of the marriage (in the same way as the articles on the duties and obligations of the spouses). A provision deemed so gloomy and inappropriate that the circular of May 19, 2013 removed any reference to Article 220 of the Civil Code.

The solidarity of the spouses cannot however be ignored, since it will play during, and a long time after the marriage, if the debts were contracted during the marital life. Hence the interest in understanding all the mechanisms of solidarity between spouses.

The principle of solidarity between spouses

If a spouse incurs expenses, his or her spouse will be required to pay:

- All the sum towards the creditors: A creditor can turn against any of the two spouses to obtain the payment.

- Half of the sum towards his spouse: A spouse who would have paid everything and who would like to be reimbursed for half of the costs incurred, can request the reimbursement of the part he has advanced, from his spouse.

Note: Between the spouses, this contributory part of the debts will take into account the financial means of each of the spouses. A working husband will not be able to bring all the bills he has paid to his wife asking her to pay back her share if she is at home and has no income.

But this solidarity will not apply to all the expenses of living together, that is to say:

Expenses made for children

This concerns all the costs and expenses relating to enrollment and school supplies, the canteen, extracurricular activities (sport, dance, music), etc.

Household maintenance expenses

These are the expenses made for food, clothing, insurance, social contributions, leisure (vacation, painting or horse riding course, etc.), the salary of a domestic worker, the purchase of a car. , gas bills, water, electricity, condominium charges, taxes ...

The consequences of solidarity between spouses

The spouses are jointly and severally liable for debts contracted in the interest of the household.

Article 220 of the Civil Code imposes on the spouses a joint and several obligation which will apply to any debt, even non-contractual, having as its object the maintenance of the household or the education of children without distinguishing between maintenance current and future of the household.

The spouses therefore commit their personal property, their earnings and salaries and their common (or undivided) property to ensure repayment.

Solidarity will apply if it is demonstrated that the purchase was justified by family needs. This is the case for the purchase of a washing machine, a television, a refrigerator ...

If the debt is deemed to have been contracted in the interest of the household, it will weigh on both spouses regardless of their matrimonial regime.

Under the legal community regime, article 1414 of the civil code refers to article 220 of the said code and therefore to the solidarity of the spouses: " A spouse's earnings and wages cannot be garnished by the spouse's creditors which if the obligation was contracted for the maintenance of the household or the education of the children, in accordance with article 220… ».

A principle reaffirmed by article 1409 of the civil code "  the community is made up passively… of the debts contracted for the maintenance of the household and the education of the children in accordance with article 220… ».

The limits of solidarity

Article 220 paragraph 2 and 3 of the Civil Code excludes solidarity for manifestly excessive expenses, installment purchases and loans.

Obviously excessive spending

Case law assesses manifestly excessive expenditure with regard to:

- The household's standard of living and financial capacity (these criteria are cumulative).

- Of the usefulness or uselessness of the act

- The good or bad faith of the third party with whom the act is concluded

It's all about proportionality. An unnecessary expense for a household that can afford it will not be deemed excessive.

For example: The purchase of a flat screen in the amount of 2 euros will be excessive if the couple earns the minimum wage (that's the entire monthly budget), but if they earn more than 000 euros per month this will not be excessive (there is money left to pay current charges).

Solidarity for loans, credits and split payments

Small legal clarification:

Legally, the loan must be distinguished from a credit contract, from an installment purchase… and this, even if all these concepts are part of the same financial transaction.

The loan : You borrow a large sum of money (from your bank or a credit institution) to pay cash for a purchase.

Credit : We reimburse the borrowed money in small successive monthly installments.

Installment purchases : These are fractional purchases, that is to say, paid in several installments over time. For example, it will be a matter of paying with several checks (which you will be asked to backdate, which is illegal!) Or payment in "4 installments free of charge", even if without telling you, these payments are in progress. actually outsourced by a credit company.

From a legal point of view, it is important to know how the payment was made, because as long as it is not refunded, this determines who owns the thing and who can sue the buyer in the event of no. -payment.

With the loan, the store is fully paid, there is no longer any link between the seller and the buyer. But the buyer is the debtor of the credit company, which becomes its creditor.

In the event of non-payment, legal proceedings will be initiated by the creditor, the bank or the credit company. For large purchases, such as vehicles, the creditor can insert a "retention of title clause", this means that he remains the owner of the thing until full payment of the price and that he can take it back in the event of default. of payment.

On the other hand, for the installment purchase, it is the seller (the store) who will have to sue the buyer to obtain full payment of the price (unpaid checks).

This is the reason why the “4 times free of charge” are subcontracted with credit institutions. The store makes its sales, and lets the lending institution sue the debtors.

All these purchases are governed by the decrees of May 20, 1955, August 4, 1956; by the law of December 23, 1985, and law n ° 2010-737 of July 1, 2010 (entered into force on May 1, 2011).

The principle is that in terms of borrowing, split payment credit, there will be solidarity only if both spouses have given their consent. There must be their two signatures appearing on the contract.

The idea is that any expense split or paid for by credit assumes it was beyond the household's means, otherwise it would have been paid all at once.

The creditor can therefore only sue the spouse with whom he contracted the debt and it is on the personal property of this spouse alone that the creditor can sue.

So much for the principle, but in reality it will be necessary to take into account the criteria established by the case law on obviously excessive spending (modest sums useful for everyday life) to find out whether or not these purchases are subject to solidarity.

Here are some hypotheses to illustrate the notion of solidarity.

The lack of solidarity for a revolving loan

In a case judged by the Court of Cassation, a wife had contracted 25 distinct revolving credits by imitating the signature of her husband and by having all mail relating to these expenses domiciled with her mother. Faced with the impossibility of repaying, the creditor sued the husband who appealed to the cassation.

The wife having been unable to demonstrate how these (large) sums had been used for the maintenance of the household, she was ordered to bear only the reimbursement of all the sums contracted. (Cass. Civ., March 14, 2012, n ° 11-15.369)

Solidarity for the purchase of a vehicle

A husband had borrowed from his neighbor the sum of 3 euros to buy a motor vehicle. Not having repaid the debt, the creditor turned against the wife of her debtor. The wife appealed against the debt.

The judges of cassation dismissed the appeal and upheld solidarity on the grounds that the amount borrowed was not excessive and that it was necessary for the needs of the daily life of the household.

This decision is interesting, because the judges took the trouble to specify that the wife would not have been held in debt if she had shown " that the purchase of a vehicle for the family was superfluous (useless), for example due to duplication "(Cass. Civ., 1st October 5, 2016 n ° 15-211.87)

So in matters of vehicle bought alone by a spouse, his spouse will be required to repay the debt if the sum is modest in relation to their income, and if its purchase is useful for family life.

Conversely, the purchase of a convertible or a Range Rover of great brand will not be a joint debt if the couple already have a vehicle and its price is too high.

Likewise, the purchase of a vehicle acquired for the strictly professional use of one of the spouses will not be an expense of household maintenance.

And this applies to all loans and debts contracted for the purposes of carrying out a professional activity.

Solidarity for health debts

Health expenses are more and more badly or not reimbursed. So it happens very often that medical bills go unpaid.

Health debts are joint and several if the act is useful and does not exceed the financial capacities of the couple.

Dental care (Cass. Civ., 1st of May 10, 2006, n ° 03-16.593), care provided in a hospital to one of the spouses (Cass. Civ., 1st of December 17, 2014, n ° 13- 25.117) are solidarity debts because they are necessary.

But it will be different for the expenses of cosmetic surgeries without therapeutic aims carried out at an exorbitant cost. Only the spouse who has benefited from these operations will be required to pay.

Solidarity for social contribution debts

The Court of Cassation ruled in solidarity for contributions owed by a husband under a compulsory statutory old-age insurance scheme.

She recalled that the interests of the spouses were appreciated in view of the present situation, but also the future of the spouses.

Seen in this light, social contributions not only ensure income in the future which will ensure the maintenance of the family, but also, in the event of death, a right of reversion in favor of the surviving spouse.

These two criteria are sufficient to recognize the solidarity of the spouses for unpaid social contribution debts.

« The purpose of the payment of contributions is to allow the pensioner to ensure, after the cessation of his professional activity, the maintenance of the household and that this system establishes, on the date when the contributions are due, the principle of a right of reversion for the benefit of the surviving spouse, these contributions constitute a household debt jointly obliging the other spouse ... "(Cass. Civ. 1st, of June 4, 2009, n ° 07-13.122)

How to escape the solidarity of the spouses?

If a spouse discovers that his spouse has taken out a loan, a loan ... without having been informed and therefore, without having signed the commitment, he can act to dissociate himself from his spouse. He must prove that the third party (banker, credit company, loan from a natural person, etc.) was acting in bad faith.

Bad faith of third parties

The third party is in bad faith when he knows full well that the contract entered into with one of the spouses is far beyond the couple's means.

Solidarity will not apply to the spouse who has not taken out the loan and only the spouse who has committed will be required to repay the debt.

On the other hand, the creditor who is in good faith (he does not know that the act concluded is beyond the means of the household) can turn against the two spouses.

The burden of proof

The principle is that the solidarity of the spouses is presumed. She will play until a husband calls her into question.

Therefore, it will be up to the spouse who did not subscribe to the act to demonstrate, by all means, that the expenditure was manifestly excessive, and / or that it was not linked to the family interest so as not to be required to pay.

According to the system of proof in civil matters, it will then be up to the creditor who brings proceedings to demonstrate that the debt was intended for the interest of the household. We must not lose sight of the fact that the interest of the creditor is to increase his chances of repayment by allowing himself the possibility of suing one or the other of the spouses.

Everything is a question of appreciation that will be up to the judge to decide.

So much for the principles, but in reality we must keep in mind that it is not so easy to escape the solidarity between spouses!