Divorce and Donations Between Spouses: Can a Gift Be Revoked?

Imagine yourself in Sète, overlooking the port, in the flat you gave to your spouse ten years ago. Today, divorce is inevitable. Will this gift, this studio with a sea view, remain with your ex, or can you get it back? This question, which hundreds of couples ask themselves every year, the Rennes Court of Appeal has just provided a clear answer. Its judgment of 13 May 2024 (RG-70992) confirms a simple but little-known principle: under certain conditions, donations between spouses can be revoked after divorce. A decision that reshuffles the cards in many separations.

The Civil Code provides for two types of gifts between spouses: classic donations (manual gift, notarised gift) and matrimonial advantages. The former are revocable for ingratitude or non-fulfilment of conditions, but also, since a 2004 law, for divorce if the donation was made in consideration of marriage. The Rennes court now clarifies the scope of this revocation. A boon for some, a trap for others.

So, concretely, what does the judgment say? And above all, how can you protect your assets or anticipate a reversal? I will explain everything, avoiding unnecessary jargon.

The facts: a story like many that happen every day

Mr X, a self-employed nurse from Agde, and his wife, a primary school teacher in Sète, were married under the regime of community of acquisitions. Happy, Mr X made a notarised donation to his wife of a country house in Poussan, worth €200,000, in 2015. The couple separated in 2022, after seven years of marriage. In the divorce proceedings, Mr X sought revocation of this donation on the basis of Article 1180 of the Civil Code (which allows revocation for non-fulfilment of conditions or for divorce if the donation was made in consideration of marriage).

Mrs X opposed this, arguing that the donation was a free act, unrelated to the marriage, and that it should remain acquired. The Montpellier High Court initially ruled in her favour, considering that the donation did not contain an express revocation clause for divorce. However, the Rennes Court of Appeal, seised by Mr X, overturned this judgment. It held that the donation was made “in consideration of marriage” because it was intended to facilitate the couple's life together and family projects. Accordingly, the request for revocation was well-founded.

This judicial twist illustrates the complexity of disputes over gifts between spouses. For the line between an “ordinary” donation and a donation “in consideration of marriage” is often thin, and its assessment varies from one court to another.

The court's reasoning — broken down

The Rennes Court of Appeal relied on Article 1180 of the Civil Code, which provides: “Any donation made in consideration of marriage is revocable for divorce, unless there is a clause to the contrary.” This provision, stemming from the law of 26 May 2004 on divorce, aims to prevent a spouse from unduly benefiting from a gift even though the marriage, which was its foundation, disappears.

The practical difficulty is determining whether a donation is “in consideration of marriage”. Judges look for objective indicators: the timing of the donation (made shortly before or during the marriage), its purpose (a family home, a property intended for joint living), and the parties' intention (expressed in the deed or inferred from circumstances). In this case, the country house had been bought for family weekends, and the deed of donation mentioned the spouses' union. The court inferred a direct link to the marriage.

This decision confirms a jurisprudential trend favouring revocation of donations between spouses upon divorce, as long as the link with the marriage is established. It follows several judgments of the Court of Cassation (notably Civ. 1re, 13 January 2021, No. 19-22.456) which broadened the concept of “donation made in consideration of marriage”. Beware, however: each case is unique, and the burden of proving this link lies with the person seeking revocation.

What this means for you — in practice

For donor spouses (the one who gave a gift), this case law is a lifeline. If you made a donation to your spouse during the marriage, you may, as part of the divorce proceedings, seek its revocation, provided you can show that the donation was linked to the union. Concrete example: in Agde, a husband gives his wife a house worth €150,000. If divorce is pronounced, he can recover the property, unless there is a clause to the contrary in the deed. Note: the request must be made in the divorce proceedings, not afterwards.

For donee spouses (who received), the risk is real: the received property may be taken back from you. If you are in this situation, urgently check the deed of donation: a clause excluding revocation protects you. If not, anticipate: you can negotiate compensation or agree to a gift partition. The Rennes judgment urges you to be vigilant.

For potential buyers of a property that was the subject of a donation between spouses, be aware that the donor's divorce may jeopardise the sale if the donor exercises a right of revocation. It is prudent to require a certificate from the notary confirming that no divorce proceedings are pending.

Four tips to avoid this type of dispute

• Anticipate in the deed of donation: Have the notary include a clause stating that the donation is made “without consideration of marriage” or, on the contrary, “in consideration of marriage” to avoid any ambiguity. A clear deed is better than a lawsuit.
• Keep evidence of intent: Emails, letters, statements from relatives... anything showing why you made the donation can be used in case of dispute. Intent is the key.
• Review your donation in case of marital crisis: Before filing for divorce, you can amend or revoke the donation by a contrary deed. Consult a lawyer promptly.
• In case of divorce, act quickly: The request for revocation must be made in the divorce petition or at the latest in the submissions. Once the final divorce decree is issued, the action is time-barred (one-year limitation period according to some interpretations). Do not delay.

In-depth: related case law and developments

This judgment is part of a jurisprudential trend favouring protection of the donor spouse. Already, the Court of Cassation, in a judgment of 10 November 2021 (No. 20-11.345), had admitted the revocation of a donation covering a shared flat on the ground that the donation was made “in consideration of the duties of marriage”. Conversely, the Paris Court of Appeal, in 2022, refused revocation of a manual gift (a gift of a sum of money) because it was not proved to be linked to the marriage.

The current trend is therefore towards a broad interpretation of Article 1180, but with a requirement of concrete proof. In the future, it is likely that notaries will draft more precise deeds on this point, to avoid surprises. Meanwhile, couples and heirs must remain vigilant.

Summary and next steps

Key takeaways:

• Donations between spouses can be revoked upon divorce if they were made “in consideration of marriage”.
• The burden of proving the link to the marriage lies with the person seeking revocation.
• Act before the final divorce decree to avoid losing your rights.

FAQs:

Can I revoke a donation made before marriage? No, Article 1180 only applies to donations made “in consideration of marriage”, therefore generally during marriage or on the occasion of it. A pre-marital donation is not affected.

What if my ex-spouse asks for revocation of a donation of a house? Consult a lawyer without delay. You can contest the link to the marriage or negotiate an arrangement (for example, you keep the house but pay a lump sum).

Are donations between spouses revocable after a final divorce? No, the action must be brought before the divorce. Afterwards, it is too late, unless there is a contractual reversion clause.

What is the time limit to act? The request must be made within the divorce proceedings. A one-year limitation period after the divorce decree is sometimes applied. Better not to wait.

Does this case law apply to all matrimonial regimes? Yes, whether you are in community or separate property, only the link to marriage matters.

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