In the event of separation or divorce, one of the spouses may want to keep the home by “purchasing” the other’s share. “It is even the most frequent hypothesis and the first avenue explored due to the attachment to the property and the sector, and the desire not to disturb the children,” testifies Vanessa Blot, a Lille lawyer specializing in divorce and family law.
However, it is not simple. Determine the value of the property and the the balance of payments are serious obstacles that must be overcome. Without forgetting that this route is also the most expensive: several taxes will have to be paid to the State (a participation fee of 1.1% of the net value of the property if the participation is a consequence of a divorce or a breakdown of PACS, and rights of 5.8% on the participation acquired by the partner), pay the notary fees and possibly compensation for early repayment of the loan.
To assess the value of the property, the best way to proceed is undoubtedly to use three real estate agencies and average the appraisals, discarding one of them if it is more than 10% higher or lower than the others. If a loan is outstanding, subtract the outstanding principal. The result will be divided by two, in the case of community of property or equal co-ownership, or in proportion to the rights of each one. You will get the balance amount to pay.
Ideally, the person who keeps the accommodation requests a new loan, in their name, to finance the balance and repay the initial loan. “Another option: obtain the dissociation of the loan. The conditions required of banks are different from one establishment to another and increasingly tougher, but not impossible.”according to Mᵉ Blot. “In case of refusal, I advise the person who is not the beneficiary of the property not to agree to remain responsible for the loan, unless the remaining term of the loan or the outstanding principal is low. »
Escape from the right to share
Is the sale of the property inevitable? The disunited couple will have to agree on the sale price, the choice of the buyer, the distribution of the price, etc. A question often arises: should you sell before getting divorced? For Vanessa Blot, there is no debate: “The same occurs in terms of costs in the case of a community marriage, which is the majority of unions. »
Why do some people still have doubts? If the spouses sell their assets before the divorce and agree to share the price, they can usually escape the right of division. Since they share verbally, there is no writing. And as the government assured in a ministerial response in 2020, “In the absence of an act, verbal sharing is not subject to the right to share.”. This requires not mentioning participation in the subsequent divorce agreement.
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