DIVORCE AND RIGHT OF PARTITION
Question No. 10159 by Mr Vincent Descoeur (Les Républicains - Cantal) )
Proportional (tax) division duty is only payable if there is a deed recording the division of the sale price.
Verbal division of the sale price between the spouses is therefore not subject to any duty.
But, for example, in a divorce by mutual consent, if the spouses :
-make mention of this sharing of the price in a deed - whatever it may be,
-Registration of the deed will be compulsory and the fees will have to be paid.
Ministerial reply
1.
The article 835 of the Civil Code provides, in the case of amicable partition, that if all the undivided co-owners are present and capable, partition may take place in the form and on the terms chosen by the parties.
Partition is therefore effected by a simple exchange of consents. And it can be done verbally, except when the joint ownership concerns property subject to land registration. In this case, the deed of partition must be drawn up by notarial deed.
From a tax point of view, 7° of 1 of Article 635 of the General Tax Code (C.G.I) provides that deeds recording a division of property on any basis whatsoever must be registered within one month of their date.
Article 746 of the same code states that divisions of movable or immovable property are subject to a registration duty or land registration tax of 2.50 %, commonly referred to as "division duty".
The payment of partition duty is therefore subject to the existence of a deed recording the partition.
2.
However, in the absence of a deed, a verbal partition is not subject to partition duty. As a result, a verbal division between spouses of the proceeds of the sale of a joint property that takes place before a divorce by mutual consent as amended by Law 2016-1547 of 18 November 2016 on the modernisation of justice in the 21st century, is not subject to the right of partition..
However, if the spouses subsequently record the division in a deed of any kind, including the divorce agreement, before, during or after the divorce proceedings, or if they mention the verbal division in a deed subsequent to the division, the deed recording the division must be subject to the registration formality and must give rise to payment of the division duty under the conditions set out in articles 746 et seq. of the CGI.
It is also specified that the proceeds of the sale must, even if there is no division :
-be included in theliquidation of the matrimonial property regime annexed to the agreement,
-The latter must include all the couple's joint or undivided assets.
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