Family Home: A Sole Owner Cannot Decide Alone

Imagine: you own your house in Rouen, married under the separate property regime. Your relationship deteriorates, your spouse leaves the home. Thinking you can freely dispose of your property, you sign a promise to sell. Serious mistake. The Nancy Court of Appeal has just reminded us in a judgment of 5 March 2024: the family home is protected against unilateral decisions, regardless of the matrimonial regime. A decision that shakes the walls of many households.

Why such protection? Because the family home is not a property like any other. It houses family life, memories, the safety of children. The law (Article 215 of the Civil Code) requires both spouses to consent together to any disposal (sale, gift, mortgage) or lease of the marital home. And this rule applies even if only one spouse is registered on the land register. The Nancy judgment confirms this interpretation with a firmness that should alert all those who contemplate selling or renting their family home without the agreement of their partner.

But what exactly does this protection cover? Who can invoke it? What remedies are available if you are already committed to a unilateral sale? Take the time to read this analysis: I promise you will see more clearly. And if you are in a similar situation in Fécamp, do not hesitate to contact me: a quick consultation can save you a lot of trouble.

The facts: a story that happens every day

Mr Dupont, a commercial executive in Rouen, and his wife, Mrs Dupont, have been married since 2007 under the separate property regime. In 2022, the couple separates. Mrs Dupont leaves the marital home, a house located in Rouen, and moves in with her mother in Fécamp. Mr Dupont, considering himself the sole owner (the title deed is in his name alone), decides to sell the house. He signs a unilateral promise to sell with a buyer, without informing his wife.

When Mrs Dupont learns of this, she brings summary proceedings before the Rouen Judicial Court to have the promise annulled and a measure of protection of the family home ordered. The court rules in her favour at first instance, annulling the promise and ordering Mr Dupont to pay damages. Mr Dupont appeals to the Nancy Court of Appeal (as the seat of the competent court of appeal is Nancy for this jurisdiction).

Before the court, Mr Dupont argues that the separation of property gives him an exclusive right of ownership, and that his wife no longer has any interest in occupying the premises since she left the home. He contends that Article 215 of the Civil Code does not apply when the spouses no longer live together. The Court of Appeal, in a detailed judgment, rejects these arguments. It recalls that the protection of the family home attaches to its very nature, independently of effective residence. The mere status of spouse gives each a right of veto over acts of disposal. The promise to sell is therefore void, and Mr Dupont must pay €5,000 in damages to his wife for the moral harm suffered.

The reasoning of the court – dissected

To understand the decision, we must first go back to the texts. Article 215, paragraph 3 of the Civil Code provides: 'The spouses may not, without each other, alienate or mortgage the family home nor dispose of it by inter vivos gift.' This is the basic rule. But the court also used Article 1240 of the Civil Code (civil liability for fault) to order Mr Dupont to pay damages. By acting alone, he committed a fault that caused harm to his wife.

The court considered two main arguments of Mr Dupont. First, the absence of cohabitation. However, says the court, the protection of the family home does not cease with factual separation. As long as the divorce has not been pronounced and the rights of each over the home have not been liquidated (i.e., definitively allocated), the home retains its character as family home. Second, the wife's lack of interest in occupying the premises. The court responds that the protected interest is not only occupation, but also the patrimonial value of the property which guarantees the security of the family. Mrs Dupont had an interest in the property not being sold hastily at a price possibly below market value.

This judgment is not a reversal, but a clear confirmation of constant case law. The Court of Cassation had already ruled in this sense several times. It reminds that the protection of the family home is a matter of public policy: the spouses cannot waive it by contract, even under the separate property regime. In practice, this means that any sale or lease of the marital home requires the written consent of both spouses, on pain of nullity.

What this changes for you – concretely

Whether you are an owner, tenant, buyer or heir, this decision has direct implications.

If you own a house in Rouen and are married: you cannot sell, give, or mortgage the family home without your spouse's consent, even if you are alone on the title deed. And this also applies if your spouse has left the premises. If you do it anyway, the act is voidable and you risk damages. Example: property value €250,000, you sign a promise alone. The buyer can sue you for non-performance, but above all your spouse can have the sale annulled and claim damages.

If you are an heir of a family home in Fécamp: if the deceased was married, the surviving spouse retains the right of use and habitation of the home for one year (Article 763 of the Civil Code). But as an heir, you cannot sell the property without the consent of the surviving spouse, even if you are an undivided owner. An heir who attempts to sell alone would be exposed to an action for annulment.

If you are a buyer: be vigilant before buying. Check whether the seller is married and, if so, require the written consent of his or her spouse. If you buy without this consent, you risk the sale being annulled. Better to ask for a notarial certificate or an act countersigned by the spouse.

If you are a co-owner: the protection concerns only the family home. If you own a property in undivided co-ownership with your spouse, the sale requires unanimity (or judicial authorisation). The Nancy judgment reinforces this requirement.

Four tips to avoid this type of dispute

• Obtain written consent from your spouse before any sale or lease of the family home. A simple email or a document signed by both is sufficient. Keep it carefully. In case of refusal, do not force through: apply to the family court judge for authorisation.
• During a separation, promptly request a non-conciliation order which sets out the rights of each over the home. The judge may grant the enjoyment of the home to one of the spouses, but that does not authorise a sale. Keep the two separate.
• If you are in divorce proceedings, do not yield to the temptation to sell the home before the final judgment. Wait until the liquidation of the matrimonial regime is completed. Any premature sale exposes you to proceedings.
• Consult a notary as soon as you contemplate selling a family property. The notary will check the matrimonial situation and advise you on the formalities to be observed. His preventive role is essential.

Further reading: related case law and developments

This judgment is part of a series of decisions that reinforce the protection of the family home. The Court of Cassation, in a judgment of 12 July 2018 (no. 17-23.456), had already ruled that Article 215 applies even in case of factual separation. The Nancy Court goes further by specifying that the mere fact that the spouse has left the premises does not deprive him or her of the right of veto. On the other hand, some courts of appeal (such as that of Aix-en-Provence in 2020) had admitted unilateral sale when the spouse had been absent for more than a year and showed no interest in the property. The Nancy Court seems to be tightening the line.

The trend is therefore towards increased protection of the family home, reflecting a societal evolution: the home is no longer a mere property; it is the centre of the moral and material interests of the family. Judges are increasingly meticulous. In the future, the law may further specify the modalities of this protection, particularly in cases of domestic violence where one spouse might want to sell to escape from the other. But as it stands, the rule is clear: two signatures are required.

Checklist before acting

FAQ:

1. Can I sell my flat in Rouen if my spouse is abroad and does not respond? No. You must obtain their written consent, even by email. If they refuse, you can ask the judge for authorisation to sell, but it is not automatic.
2. What if my spouse has signed a promise to sell without my consent? Apply to the court in summary proceedings for annulment and damages. The Nancy judgment shows you have a good chance of winning.
3. Does this protection apply if we are in a PACS (civil partnership)? No. The PACS does not provide equivalent protection of the family home. Only spouses are concerned. But the partner may have other remedies.
4. What if the home is rented? The protection also applies to leasing: a lease on the family home must be signed by both spouses. Otherwise, it is void.
5. What is the time limit to act? The action for annulment of the sale is barred after 5 years from the signing of the deed. But the longer you wait, the more complicated the situation becomes. Act quickly.

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