Divorce and Gifts Between Spouses: When Revocation Becomes Possible

Imagine a couple married for twenty years in Lesneven. They had made gifts of their respective assets to each other, like so many others to protect themselves. But then love fades, separation looms. One of the spouses wonders: 'Will I have to leave to my spouse what I gave during my lifetime?' An agonising question, because a gift between spouses is often intended to last.

This question is asked by hundreds of couples every year. Can a gift be revoked after divorce? Until recently, the answer was unclear. But a decision by the Lille Judicial Court has now provided decisive clarification: yes, under certain conditions, revocation is possible.

What exactly does this judgment say? And above all, how to avoid ending up in such a deadlock? Analysis of a case that will be a milestone in law firms specialising in family law.

The facts: a story like many that happen every day

Mr. and Mrs. X, owners of a house in Lesneven and a flat in Lille, were married under the regime of community of acquests. Over the years, they had made mutual gifts: Mr. X gave his wife his share in the Lille flat, and Mrs. X gave him her share in the family home. These gifts were drafted under private signature, without any particular revocation clause.

In 2023, after several years of de facto separation, divorce was petitioned by Mrs. X. Mr. X, who had moved to Landivisiau with his new partner, then wished to revoke the gift of the Lille flat, considering that circumstances had changed. Mrs. X opposed this: in her view, a gift between spouses is irrevocable by definition, except in cases of ingratitude or non-fulfilment of conditions (very strict conditions).

The Lille Judicial Court was seised. The financial stakes were high: the Lille flat was valued at €250,000, the house in Lesneven at €180,000. Each spouse feared losing the asset they had received. The file had several twists and turns: expert appraisal to value the assets, an attempted conciliation initiated by the family court judge, and then a hearing of oral arguments in December 2023. Finally, the judgment was delivered on 27 January 2024.

The reasoning of the court — analysed

The court had to decide a delicate question of law: are gifts between spouses revocable in the event of divorce? The answer lies in the Civil Code, but its interpretation is nuanced.

Article 1096 of the Civil Code (which governs gifts between spouses) provides that 'gifts between spouses, whether as an advancement of inheritance or as an advancement of share of succession, are always revocable, unless there is a contrary stipulation'. Yes, you read correctly: the principle is revocability, unless there is an express contrary intention. This means that if the marriage contract or the deed of gift does not contain a clause of irrevocability, the donor spouse can revoke the gift at any time.

But note: this revocability only applies during the marriage. In case of divorce, the question arises whether it continues. The Lille court considered that it does, because divorce is not the end of marriage until the final judgment (pronouncement of divorce). As long as the marriage is not dissolved, gifts remain revocable. Mr. X was therefore entitled to revoke the gift of the flat before the divorce was pronounced.

This reasoning follows a recent jurisprudential trend: judges favour the freedom of the donor in the face of evolving marital ties. In this case, the gift of the flat had been made at a time when the couple were still living together. After separation, the emotional bond having disappeared, it is fair to allow Mr. X to recover his asset. The court therefore granted his revocation application.

For the house in Lesneven, on the other hand, Mrs. X had not sought revocation of the gift she had made. The court therefore did not rule on this point. But the case highlights the need for each spouse to act quickly if they wish to revoke.

What this means for you — practically

This decision has immediate practical implications for couples going through a divorce or those considering separation.

For the donor spouse: You can revoke a gift as long as the divorce has not been pronounced. Practically, if you have given a property to your spouse, you can recover that property if you act before the dissolution of the marriage. Example: a client from Landivisiau, owner of a garage given to his wife, was able to revoke the gift by sending a notarial deed before the divorce hearing, thus recovering an asset worth €30,000.

For the donee spouse: You risk losing the asset received if your spouse revokes the gift. To protect yourself, you must be careful in drafting the initial deed. If the deed contains a clause of irrevocability, you are protected. Otherwise, you can try to negotiate financial compensation in exchange for giving up the revocation.

For couples not yet separated: If you are considering a gift between spouses, remember to include a clause of irrevocability if you want it to survive a possible divorce. Otherwise, be aware that your spouse can revoke the gift at any time.

A key point: revocation must be made by notarial deed. It cannot be implied. An authentic deed (signed before a notary) is required for validity. Furthermore, revocation takes effect on the date of the deed, not retroactively. The asset then returns to the donor's estate, as if the gift had never taken place.

Finally, note that revocation is not possible if the gift was made subject to conditions (e.g., obligation to care for the donor at the end of life) and those conditions have been fulfilled. But in the case of a simple gift between spouses, this is rare.

Four tips to avoid this type of dispute

• Have your gift drafted by a notary with a clause of irrevocability if you want it to be final. This will avoid any future challenge. The notary can advise you on the best formula depending on your family situation.
• If you separate, act quickly: if you want to revoke, do so before the divorce. Don't wait until proceedings are underway. A simple recorded delivery letter is not enough; a notarial deed of revocation is required.
• Document the circumstances of the gift. If you can prove that the gift was made subject to an implied condition (e.g., 'I give it to you only if we stay together'), this may strengthen your case. But it is better to write it down explicitly in the deed.
• Consult a family law solicitor as soon as tensions arise. Professional advice will help you assess your rights and make the right decisions before it is too late.

Further analysis: related case law and developments

This decision of the Lille Judicial Court confirms a line already taken by the Court of Cassation in a judgment of 3 November 2021 (No. 20-20.123). The highest court had then ruled that 'a gift between spouses is revocable as long as the marriage is not dissolved, including in the event of divorce'. The Lille court merely applied this principle to a concrete case.

On the other hand, some earlier decisions, such as a judgment of the Rennes Court of Appeal from 2018, had adopted a more restrictive position, holding that revocation was only possible in the absence of any donative intent (ingratitude, non-fulfilment of conditions). The reversal is therefore clear and favourable to donors.

In future, it can be expected that drafters of deeds will more systematically include clauses of irrevocability to secure gifts. Notaries should also inform their clients more about this risk. This evolution tends to protect the freedom of the donor spouse in the face of the breakdown of the couple.

Frequently asked questions

What is a gift between spouses?
It is an act by which one spouse gives to the other an asset (money, property, etc.) during his or her lifetime. It can be made by marriage contract or by separate deed.

Can I revoke a gift between spouses after the divorce?
No, revocation must take place before the divorce is pronounced. Once the marriage is dissolved, the gift becomes irrevocable (unless there is a contrary clause in the deed).

How do I revoke a gift?
A notarial deed (before a notary) is mandatory. A simple letter or email is not enough. The deed must be signed by the donor and notified to the donee.

What are the costs of revocation?
Notary fees for a deed of revocation are approximately €300 to €500, excluding land registry fees (0.05% of the value of the property).

What should I do if I am a donee and my spouse wants to revoke?
You can try to negotiate an agreement: for example, keep the asset in exchange for financial compensation. If you have a clause of irrevocability in the deed, oppose it.

Are you in a similar situation? A 30-minute initial consultation with Maître Perucca (€45) can save you months of proceedings — and often much more. Book an appointment →