Share of undivided property and commitment of the married guarantor

The share of undivided property is taken into account in the assessment of the disproportion of the commitment of the married surety under the regime of separation of property.

Cas. civil. 1, 19 January 2022, n° 20-20.467

In a judgment of January 19, 2022, the Court of Cassation confirms its reversal on the disproportion of the commitment of a married surety under the regime of separation of property.

In this case, a person married under the regime of separation of property was jointly and severally liable for several commitments granted by a bank to a company. Following the opening of judicial liquidation proceedings, the surety was called for payment.

In order to avoid it, the latter invokes the disproportion of the act of suretyship with regard to her property 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 surety married under the regime of separation must be assessed with regard to the whole of the assets of the said surety, both his own property and income and his share. share of undivided property belonging to the community.

And this, even if the undivided property cannot be liquidated without the consent of the spouse in accordance with the matrimonial regime chosen by the spouses and article 1415 of the Civil Code .

A person married under the regime of separation is called upon to show even more caution when taking out a surety bond because it will now be more difficult for them to invoke the disproportion of the surety bond, if they owns a share in undivided property