Purchasing a home before marriage can lead to different situations depending on what happens with regard to its payment and use . A priori, it will always be a private asset, even if the couple marries, applying the joint ownership regime to their marriage. But the power of disposition of the owner may be affected if the property eventually becomes a family home or if your partner has contributed to the removal of the charges (paid part of the mortgage).
Private assets vs. benefits
When a couple marries into jointly owned property, the presumption is that all assets and debts taken since the date of marriage are 50% common. However, this presumption can be violated if it is proven that the property is not half. Or even that the good or debt belongs to only one of them.
However, those assets that belonged to only one spouse will always retain their private character, even if the property regime applies during the marriage. However, if those assets are sold during the marriage, the money received from the sale will automatically be considered property.
A house bought and paid for before marriage
If one spouse bought and paid for the property before the marriage, that property will always be private, regardless of how many spouses married under joint ownership.
A house bought before marriage and paid for during the marriage
If the house was purchased before marriage, it becomes a marital home , and the mortgage continues to be paid after marriage . Article 1357 of the Civil Code applies, which states that this property has a different consideration than the rest of the property. This corresponds to the joint venture and the owner of the property , in proportion to the value of each party’s respective contributions. If the couple in this situation breaks up.
The owner must pay his or her former partner an amount corresponding to the percentage of the property that was paid for with the money belonging to the community of property in order to freely dispose of it. Otherwise, you will need your former partner’s consent to sell and, in addition, you must pay him the portion that corresponds to him after the sale. If the house was never the family home, it will remain a private asset for all purposes . It will not be considered partially owned by a joint venture. Therefore, the owner is free to dispose of it at any time.
In the event that one spouse owns a home that was purchased before the marriage. If you are separated or divorced and the use of the house belongs to someone who has custody of minor children , it is up to the judge to decide if the property can be sold.
How to avoid this kind of problem?
Someone who owns a home may face the unpleasant surprise that in a divorce he must pay a portion of it to his former spouse in order to become its sole owner again. As we have seen, this occurs only if the property was paid for while the joint venture was in operation, and, in addition, it is or was the family home.
There is no doubt that this causes problems because it involves additional expenses that are often thought not to be necessary. The best way to avoid such a situation is to make spousal surrender and choose a property division regime . This way, no community of property is formed between the spouses, each retains solely his or her own property.
This means that mortgage payments made during the marriage are paid only with the property owner’s money. Consequently, if the marriage is dissolved, the owner does not have to compensate the other party in any way. The ideal is to capitulate before celebrating the wedding However, nothing prevents them from making them later.
When dissolving the joint venture, though, the treasury will have to pay for the increase in wealth received in the distribution of assets. Consequently, it makes more sense to do it before the wedding to save money.
The importance of good advice
As we have seen, buying a house before marriage does not always mean that the other party will have no rights to it in the event of divorce. This is something most people don’t know. They are convinced that everything acquired before marriage belongs exclusively to them, and they do not enter into an evaluation of specific situations, such as the fact that the house is ultimately paid for by the community and is the family home.
This leads us to the conclusion that it is best to seek advice in such cases. Rather than consulting a notary public, it is convenient to discuss the situation with a specialist lawyer . It will probably advise you to opt for a division of assets. Because it is a modality that gives less trouble for the future if a divorce happens. It’s not about selfishness, far from it.
But neither should we put up with the loss of what one has acquired by one’s own effort. Also, division of property is the best way to protect the economic interests of the family . Because if one member of the couple goes into debt, the other party’s assets will be perfectly safe. This means that the marriage will never be completely without resources.