Contribution to marital expenses: why tailor-made drafting of the marriage contract matters
Legally, when you marry, you take on a number of obligations as a couple. From a financial point of view, one of them is the obligation to contribute to marital expenses (charges du mariage).
This rather technical term covers a reality that becomes crucially important at the time of divorce.
What are marital expenses?
Marital expenses are the expenses linked to the lifestyle of the couple or the family. They are understood very broadly. They include, in particular, spending on housing, food, clothing, travel, healthcare, childcare...
Marital expenses also include investment spending to buy the main residence or a second home. They even extend to the household's leisure costs.
The Cour de cassation has nevertheless set two important limits regarding real estate investment:
- If the investment is purely a rental one, the spending on its purchase is not part of marital expenses;
- If the spending comes from a personal capital contribution by one of the spouses, that contribution falls outside the scope of the contribution to marital expenses. This applies whatever the use of the property (main residence, second home or rental).
How are marital expenses shared between spouses?
In principle, marital expenses are shared between the spouses in proportion to their respective means (article 214, paragraph 1 of the French Civil Code).
Each spouse's means depend on their financial resources and income. The judge assesses them when the matter is challenged (in practice, when the couple separates).
By way of exception, the spouses may agree between themselves on a different allocation of marital expenses. But this must not exempt either spouse entirely from contributing. Such derogating clauses are usually set out in the marriage contract.
Recurring problems with the proportions and means used by spouses married under separation of property to finance the main residence
In practice, spouses who have signed a separation of property contract often finance the purchase of the family home, owned 50/50 by both, in unequal shares.
In that case, the spouse who contributed more than the other may wish to claim a debt against their spouse at the time of divorce.
Yet the judge's response to this claim can be radically different depending on how the marriage contract is drafted and how much room it leaves for interpretation.
A few possible scenarios
In the light of the latest case law on the subject, the following scenarios can be imagined:
Financing by means of a loan
In this case, loan repayments are in principle regarded as marital expenses. Each spouse should therefore repay the loan in proportion to their respective means.
Very often, the clause of the separation of property contract relating to contributions to marital expenses presumes that each spouse has provided their share. As a result, no account is taken between them on this point at the time of divorce.
One spouse's over-contribution through loan repayments would then fall within this framework. In principle, it could not give rise to any claim, since each spouse is presumed to have contributed in proportion to their means.
In this context, the judges will consider whether evidence to the contrary may be brought, or whether the presumption cannot be rebutted. In the latter case, the spouse will not be able to claim anything, whatever evidence is put forward.
To avoid the uncertainty of the judge's assessment, we strongly recommend clarifying the contract clause, stating clearly whether the presumption is rebuttable or irrebuttable.
Financing by means of a personal capital contribution from one spouse
As mentioned above, recent case law has confirmed that such spending is excluded from marital expenses. Consequently, the spouse who generated a claim in the other's favour through this personal investment could in principle claim it back.
Here again, your marriage contract can provide for many variations. For example, it can extend the notion of marital expenses to each spouse's personal capital contribution to a purchase, and then provide for a presumption that each spouse contributed in proportion to their respective means.
This would avoid any accounting between the spouses, whatever the means used to finance the purchase (a loan or a capital contribution).
Conversely, the marriage contract can provide for an almost automatic settlement of accounts. In that case, all real estate investments could be excluded from the presumption of contribution in proportion to means. This can be very broad and include, for example, those relating to the family home. Calculating the claim where the contribution to marital expenses was disproportionate would then become the rule.
In conclusion
It cannot be repeated often enough: when it comes to matrimonial regimes and marriage contracts, a tailor-made approach is essential. Spouses must weigh the scope of each clause with their notaire, to reflect their wishes as a couple and prevent later conflicts. Without the right clauses in the marriage contract, the outcome will be left to the uncertainties of court decisions. And case law in this area changes a great deal, sometimes even in contradictory ways…
For David Notaires – Aix en Provence, Elodie Letouche