The Risks of Cohabitation

April 17, 2019

 

The risks of cohabitation in relation to marriage: a woman who owns property in joint ownership with her cohabitant is obliged to repay the latter and therefore to pay a second time her share of the contracted loan in order to acquire the undivided property.

 

The legal regime of cohabitation is less regulated than that of marriage and that of PACS, which is not necessarily the case for cohabitants, who are therefore subject to ordinary law, as demonstrated once again by the judgment handed down for violation of the law by the First Civil Division of the Court of Cassation on June 25th, 2014.

 

In this case, a couple living in cohabitation had bought a plot of land in joint ownership and had a house built on it. To finance the acquisition and construction, they took out a bank loan, the monthly payments of which were only deducted from the account of one of the cohabitants (the boyfriend).

The couple then split up.

 

One of the former couple (the boyfriend) brought an action before the court of first instance and then the court of appeal for the deed for the property to be equally shared. He was denied his request that his ex-partner be declared a debtor towards the deed of the property on account of the maturities of the loan before the judges of the merits (TGI and court of appeal).

 

The partner then lodged an appeal in cassation, which was upheld by the First Civil Division in its judgment of June 25th, 2014.

 

According to the boyfriend: the instalments of the loan were paid into his account, this proves that he has actually paid them since the holder of a bank account is presumed to be the sole owner of the funds deposited in that account. Therefore, according to him, it is up to his ex-partner to establish the undivided origin of the funds used to finance the undivided building, which apparently she does not do. She must therefore yield her rights to the deed, in accordance with the principles laid down by the Civil Code regarding the burden of proof (art. 1315 of the Civil Code).

 

The Court of Cassation considered that since there is not, for cohabitants, the equivalent of Article 214 of the Civil Code for married persons, the settlement of joint ownership following the separation of cohabitants must be done by means of the common law of joint ownership. This is the reason why the Court refers to the common law: the holder of an account is presumed to be the sole owner of the funds in it.

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