The Family Residence and the Liquidation of the Matrimonial Property Regime Are Not the Same
A family residence annotation provides protection against certain transactions over the residence in which family life is carried on; by itself it does not result in an ownership share, a participation claim or the transfer of the title deed to the other spouse. Whether the family residence is acquired or separate property, and its place in the liquidation calculation, are determined separately.
The transfer of the family residence without the spouse’s express consent, the restriction of rights over the residence, or the termination of the lease agreement may give rise to separate legal consequences. The family residence annotation, the restriction of the power of disposal, requests relating to the land registry record and the claim under the matrimonial property regime must be assessed separately from one another.
Joint Title and Dissolution of Co-Ownership
Where immovable property is registered in the names of the spouses under co-ownership by shares or joint ownership, the existing shares in the land registry and the claims arising from the matrimonial property regime are not the same. A request to end the co-ownership, that is, to dissolve the co-ownership through partition in kind or sale, may require a different legal ground, jurisdiction and procedural review from the liquidation of the matrimonial property regime.
An action under the matrimonial property regime does not, as a rule, automatically create a land registry share in every asset registered in the other spouse’s name. The conditions of cancellation of the title deed and registration, dissolution of co-ownership and a monetary claim under the matrimonial property regime must be determined separately.
Each spouse may demand the return of his or her own assets that are in the other spouse’s possession. Where one of the spouses has a stronger interest in keeping an asset held in co-ownership undivided, that spouse may request that the asset be allocated to him or her in its entirety, on condition of proving the stronger interest and paying the value of the other spouse’s share. This possibility must be assessed separately for the family residence, a unit used for professional activity, or a business that forms an economic whole.
Wedding Jewelry, Dower, Personal Belongings and Divorce Compensation Are Separate Claims
The return, or the value, of wedding jewelry and ornaments (ziynet), the dower claim (mehir), the trousseau and personal belongings may, depending on the legal nature and the evidence of the case, be the subject of claims separate from the liquidation of the matrimonial property regime. These values should not be regarded in every case as part of the calculation of acquired property.
Pecuniary and non-pecuniary compensation connected with the divorce is likewise not a property division claim. These claims are assessed on the basis of fault, infringement of personality rights, impairment of an existing or expected interest and the other statutory conditions. In claims under the matrimonial property regime, by contrast, the basic review concerns the nature of the asset, the source of acquisition, the debts and the liquidation calculation.
If the matrimonial property regime, wedding jewelry, dower, personal belongings and compensation claims are brought to an end by the same general wording in an uncontested divorce protocol or a settlement text, a dispute over scope and waiver may arise later. The text must state clearly which asset, claim or debt is regulated, and which claims are waived and which are reserved.
Our Approach to the Family Residence and Related Claims
Separating the claims
The records on the state of use of the residence, the title deed, wedding jewelry and other assets are reviewed. The legal bases of claims of ownership, use, receivables and compensation are separated from one another.
Assessing the files together
The link between the divorce file and the matrimonial property file, and the necessary means of protection and proof, are identified. The procedural and time-limit conditions of the different claims are handled according to their own nature.
The scope of the engagement, fees and expenses, and the method of document sharing and reporting are determined at the consultation. Representation depends on acceptance of the engagement and the necessary authorization.
This is general information. The nature of the claim, the documents, current legislation and the specific facts must be assessed together. Submitting an inquiry does not stop statutory time limits.
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