The legal issues relating to gifts between spouses
April 17, 2019
The question of gifts between spouses deserves particular attention because it is a specific type of gift that benefits from a favourable derogation regime because of the links between the donor and the recipient. The rules applicable to gifts between spouses and matrimonial benefits were substantially amended by the Act of May 26th, 2004, which was entered into force on January 1st, 2005, separating the property effects of divorce from the attribution of wrongs.
Two questions then arise:
Can the spouses revoke the donations they have made to each other, without resorting to divorce?
For donations made before the entry into force of the 2004 law, old law must be applied. Consequently, donations by marriage contract are irrevocable because of the immutability of matrimonial agreements (article 1396 paragraph 3 of the Civil Code). On the other hand, donations made during the union are always freely revocable (former article 1096 of the Civil Code).
For donations made after January 1st, 2005, the law of May 26th, 2004 amended article 1096 of the Civil Code and donations made during the union are no longer systematically revocable. Article 1096 of the Civil Code now provides that "the gift of future property made between spouses during the marriage shall always be revocable. The gift of present property made between spouses shall be revocable only under the conditions provided for in articles 953 to 958".
The repeal of revocability therefore does not apply to donations of future property made during the marriage, which remain freely revocable during the marriage by the spouse who made them. These are the assets that will make up the assets of the settlor upon the event of their death (for example, donations received during the life of the deceased).
With regard to donations of property present, the law of June 23rd, 2006 reforming inheritance made an amendment to the 2004 law. The latter provided that donations of property present are not revocable (article 1096 paragraph 2 of the Civil Code). Since then, it has to be distinguished according to whether the gift of present property takes effect during the marriage or not.
For donations of property that take effect during the marriage, article 1096, paragraph 2, of the Civil Code provides that they are irrevocable, as for donations under ordinary law. To revoke them, it will be necessary to resort to the grounds for the ordinary revocation of articles 953 to 958 of the Civil Code (failure to fulfil the conditions under which the donation was made or ingratitude resulting either from the attack on the life of the donor, or from abuse, or from serious offences or insults against the donor). Revocation on account of the occurrence of a child of the donor is nevertheless excluded, and is the only difference compared to the common law on donations (article 960 of the Civil Code).
For donations of present property that do not take effect during the marriage, they remain revocable during the marriage by the spouse who granted them. This is the case of a donation of property that is present in the donor's assets at the time of the donation, but whose transfer of ownership has been deferred, is subject to a suspended term.
Does divorce affect donations made between spouses during the marriage?
According to former articles 267 and 269 of the Civil Code, a person whose exclusive wrongs had led to a fault-based divorce or who had initiated a divorce on the grounds of marital breakdown automatically lost all the gifts and benefits granted to him by his spouse. For divorce with shared wrongs, article 267-1 of the Civil Code provided that each spouse could revoke all or part of the donations he or she had made to the other. Divorce by mutual consent required a distinction. In the case of divorce on joint application, the spouses themselves decided on the fate of the donations. In the event of a divorce on an accepted request, article 268-1 of the Civil Code provided that each spouse could revoke these donations. The fate of matrimonial donations and benefits therefore depended on the type of divorce.
Since the 2004 law, the principle has been that of the neutrality of divorce. It is no longer necessary to distinguish according to the type of divorce, but according to the nature of the gift (article 265 of the Civil Code).
For gifts of present property, matrimonial benefits taking effect during the marriage and gifts that the future spouses would have made to each other by marriage contract, the rule is now that divorce has no effect on these gifts and benefits, which are therefore maintained (Article 265, first paragraph of the Civil code)
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