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Sandy MASCART Your mortgage in Lyon

Translation of an article written and signed in French by Sandy MASCART, for information. Only the French version is authoritative. Read the French page

Borrowing capacity, income and budget

Marital regime and borrowing: who signs, who is bound, and what the bank requires

Community of property, separation of property, PACS: how your regime affects the loan. Who signs, which assets secure the debt, and which documents to provide.

The marital regime changes very little regarding the amount you can borrow; it determines who signs and which assets secure the debt. Under the legal community of property, a spouse who borrows alone only binds their own assets and income, unless the spouse gives express consent; under separation of property, each person only binds what they sign. The bank therefore requires the marriage contract or the PACS agreement.

By , mandataire d'intermédiaire en opérations de banque et en services de paiement ORIAS 26000541 sous le mandat de CDV PATRIMOINE & ASSURANCE (ORIAS 14005573)

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Key points

  • Under the legal community of property, a spouse who borrows alone only binds their own assets and income, unless the spouse gives express consent.
  • Consenting to the loan and co-borrowing do not have the same effect: the consenting party is not a debtor, whereas the co-borrower is liable for the entire debt.
  • The family home is protected: no spouse can alone dispose of the rights securing the family residence, regardless of the regime.
  • Separation of property protects you from your spouse's debts, but not from those you have jointly signed as jointly liable.
  • Neither marriage, nor PACS, nor divorce automatically releases you from a signed loan: only the bank can release a borrower, in writing.

Your matrimonial regime changes very little about how much you can borrow. It determines who signs, which assets secure the debt and to whom the property belongs: settle these three points before the loan offer, with the article on borrowing capacity.

Why does the bank ask for your matrimonial regime?

To know who must sign and on which assets it would be repaid in the event of default.

Prepare:

  • the family record book;
  • the marriage contract, if one exists;
  • the civil partnership agreement and its registration;
  • in the case of separation, the judgment, the divorce agreement or proof of the proceedings.

The rest: the documents to provide.

Who signs, who is liable: the four situations in one table

Your situation Who signs, in practice What secures the debt
Married without a contract (legal community of property) Both, as joint borrowers; failing that, the spouse intervenes to consent Depending on the spouse's signature: see the following section
Married under a separation of property regime The one who borrows, alone if buying alone Their personal assets and income
Civil partners According to the agreement; absent a contrary clause, each for what they subscribe The assets of the person who signed
Cohabiting partners Each for what they sign: no status binds them The assets of the person who signed

For civil partners, a property without proof of exclusive ownership is held in undivided halves. The ownership of a joint purchase: borrowing as a couple.

Can you borrow alone when you are married under the community property regime?

Yes, but the lender will require the involvement of your spouse: without their consent, you only encumber your separate assets and your income.

  • Consent: the spouse is not a debtor; the community estate is liable, not their separate assets.
  • Co-borrow: they are liable for the entire loan, even after a separation, as long as the lender has not released them.

Co-borrowing when consent would have sufficed unnecessarily reduces your borrowing capacity. Check the status of each party on the loan offer. The property is settled with the solicitor before the signature; for a gift: the family gift.

Separation of assets: what it protects, and what it does not protect

One spouse's loan does not encumber the other, but you are assessed alone, with co-signed loans counted in full.

Taux d'effort maximal des emprunteurs
35,00 %

Pour un emprunteur seul, il se calcule sur ses seuls revenus retenus. Un prêt commun déjà en cours y pèse pour son échéance entière, parce que chaque co-emprunteur solidaire en est tenu en totalité.

En vigueur depuis le
Source
Décision D-HCSF-2021-7, art. 1er — Légifrance

And the family home requires the involvement of the spouse for a mortgage or a bridge loan, regardless of the matrimonial regime. Consult the solicitor before the offer, and the loan guarantees.

What happens to the loan if your situation changes?

Nothing releases you automatically: only the lender, in writing, releases a debtor.

  1. Marriage or civil partnership after a solo purchase: the loan remains unchanged; have the solicitor record your spouse's share of the instalments.
  2. Separation: vacating the property does not release you from the loan. The equalisation payment buyout.
  3. Change of matrimonial regime: consult the solicitor.

Errors to avoid

  • Believing that a separation of property regime protects against a co-signed loan.
  • Buying alone, while married, with own funds, without a notary.
  • Having a spouse co-borrow whose income is not used.
  • Looking for the marriage contract in the loan offer.

A file ready to sign

As a mandate holder for a bank operations intermediary, I identify who must sign, I calculate the borrowing capacity in the correct configuration and I point out what falls within the notary's remit, who alone advises on the matrimonial regime. The documents · the fees.

Alone or as a couple? Create your file or explain your configuration by telephone.

Sources

Read next

All articles on this topic: Borrowing capacity, income and budget

Your loan and your purchase

Mandatory legal information, in French:

L’emprunteur dispose d’un délai de réflexion de dix jours ; la vente est subordonnée à l’obtention du prêt ; si le prêt n’est pas obtenu, le vendeur doit rembourser les sommes versées.

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