A loan binds all the signatories of the loan agreement . However, there is nothing to prevent one or the other member of a married couple under the community scheme from subscribing to a credit alone .
Subscription by a single member
If the loan is signed by one of the spouses without the consent of the other, the subscriber undertakes his own responsibility, ie his income and his private property. The common heritage is not engaged . The spouse is engaged only from the moment he gives his agreement. The loan then becomes a personal debt like those that existed before marriage.
The situation is more complex in the case of a joint account insofar as the deductions will indirectly impute the spouse’s income. On the other hand, in case of dispute, the judge may consider that the debt is common.
To know : In the case of the subscription by a member of the couple, the bank calculates the rate of indebtedness on the basis of the incomes of the single borrower.
Recourse of the lender
In the event of a default by the single borrower, the bank may sue the borrower for its own income and property only. Here again, things can be more complex to the extent that it is possible that the loan subscribed by one of the spouses was used to increase the common heritage. Still it will be necessary to be able to prove it.
A spouse can, however, take out only a loan in the common interest provided that it is used for routine household maintenance , that is to say the education of children, the purchase of food, the payment of expenses or debts. It then constitutes a household debt within the meaning of Article 220 of the Civil Code . In case of default, the commons are then committed.
Reminders on the operation of the regime of the legal community
Considered a default choice, the community regime (chosen by more than eight out of ten couples) is based on the principle that everything that is acquired before marriage (or that is passed on by gift or inheritance) is a property of its own. all that is acquired after is common (belongs equally to each member of the couple). This is the case for the acquisition of the principal residence or any real estate investment.
Management of the commons
Decisions on the management of common heritage can be made by either spouse without the consent of the other. Two exceptions require the agreement of each of them:
- Renting or selling the house
- Subscription of a loan.