Share of undivided property and commitment of the married guarantor

The share of jointly owned property is taken into account when assessing the disproportionate nature of the commitment of a guarantor married under a separation of property regime.

Cass. civ. 1, January 19, 2022, No. 20-20.467

In a ruling dated January 19, 2022, the Court of Cassation confirmed its reversal on the disproportionate commitment of a guarantor married under the regime of separation of property.

In this case, a person married under a separation of property regime became jointly liable for several obligations granted by a bank to a company. Following the commencement of insolvency proceedings, the guarantor was called upon to pay.

In order to avoid this, the latter invokes the disproportion of the guarantee act in relation to her assets and income on the basis of article L332-1 of the Consumer Code .

The Court of Cassation declares that the disproportionate nature of the commitment of a guarantor married under the regime of separation must be assessed in view of the entire assets of said guarantor, both his own property and income and his share of the undivided property belonging to the community.

And this is true even though jointly owned property cannot be liquidated without the consent of the spouse in accordance with the matrimonial property regime chosen by the spouses and Article 1415 of the Civil Code .

A person married under a separation of property regime is advised to exercise even greater caution when signing a guarantee agreement, as it will now be more difficult for them to invoke the disproportionate nature of the guarantee if they own a share in jointly owned property.