DIVORCE: THE WIFE HAS PAID SUMS IN HER SOLE INTEREST

Wife's personal rules

In law (Wife's personal rules) :

The law applicable to the conditions of existence of unjust enrichment is the law applicable to the juridical fact which is its source.

In this case, the provisions of thearticle 1371 of the Civil CodeThe provisions of the Civil Code, as they stood prior to the entry into force of the Order of 10 February 2016, are therefore applicable on this point. Since the enrichment claimed by Mrs H. resulted from the exercise of Joseph J.'s contractual right of return in 2012.

However, the provisions of this order, which came into force on 1 October 2016, apply:

-determination

-and the calculation of compensation.

The application having been lodged subsequently, the order was immediately applicable in this respect.

In accordance witharticle 1371 of the French Civil CodeUnjust enrichment presupposes that a person's assets are enriched to the detriment of those of another person without legitimate cause. While the latter has no other action, the enrichment and correlative impoverishment must be established.

Under thearticle 1303 of the Civil CodeIf a person benefits from unjustified enrichment to the detriment of another person, he or she must :

-to those who are impoverished by it,

-compensation equal to the lesser of the two values of enrichment and impoverishment.

L'article 1304 of the same code provides that :

-the impoverishment recorded on the date of the expenditure,

-and enrichment as it exists on the date of the claim,

are valued at the date of judgment.

In this case (Wife's personal settlements) :

1.

In this case, on the date of Patrick J.'s death, ownership of the chalet, built on the land given by Joseph J. to his son, was presumed to belong to the latter, since ownership of the land entailed ownership of the land above it, in accordance with article 552 of the Civil Code. Joseph J. exercised his right of return over the entire property, land and buildings, and then gave it in bare ownership to Mrs H., the deed stating that the buildings had been erected by Patrick J. after he had received the gift of the land and that Patrick J. was the owner.

Mrs H. does not provide evidence of any agreement she may have entered into with Patrick J. enabling her to become the owner of half of the building, as a result of taking out loans with Patrick J. to finance it or paying half of them.

Consequently, she cannot claim ownership of half of the chalet at the date of Patrick J.'s death. The chalet did become the property of Joseph J. following the exercise of his contractual right of return.

2.

The subject of the claim she is asserting in respect of the capital gain she has made on the property remains unresolved. The mortgage assignment deed dated 31 August 2007 shows that the property transaction cost a total of 140,000 euros:

-financed by three loans taken out by the couple with the Caisse de crédit mutuel (CCM) du Val d'argent,

-secured by a conventional mortgage on the property, and a personal contribution of EUR 6,400.

In the light of the documents produced, this contribution was financed by a home loan of EUR 6,400 at 0 interest. Repayable over ten years from 5 February 2008.

It is clear from the deed of exercise of the conventional right of return dated 12 November 2012 that the three CCM loans were, however, repaid in full by the insurance company following the death of Patrick J., which Mrs H. acknowledges.

However, the payment of the loans by the insurer did not impoverish her. It did not matter that it resulted from a contract between her cohabiting partner and the insurer, which had a relative effect with regard to Joseph J.. Consequently, the capital repaid by the insurer cannot be taken into account. And, consequently, the increase in value of the property as a result of the work cannot be taken into account to the extent of this capital.

3.

In the light of the amortisation schedules, the capital repaid by the couple - which alone can be taken into account (excluding interest and insurance contributions) to determine the increase in value of the property, since it alone corresponds to the payment for the works - was as follows on the day of Patrick J.'s death, 17 March 2012, for the CCM loans:

- loan of EUR 95,600: 95,600 (capital loaned) - 94,986.86 (capital outstanding) = EUR 613.14

- loan of EUR 19,000: 19,000 - 8,950.14 = EUR 10,049.86

- second loan of EUR 19,000: 19,000 - 8,312.32 = EUR 10,687.68

a total of EUR 21,350.68.

The couple had also repaid, under the C. habitat loan, on 17 March 2012 a principal of : 6,400 - 3,733.50 = 2,666.50 EUR.

He had therefore repaid a total capital of EUR 24,017.18 to the lenders.

Mrs H. financed, at most, only half of them, i.e. EUR 12,008.59. The loans were taken from the couple's joint account at the Val d'Argent CCM, which was opened on 6 July 2007 by converting Mr J.'s individual account into a joint account with joint and several liability.

In addition, between the death of her cohabiting partner and the contractual right of return, she paid eight instalments on the C. Habitat loan, i.e. a capital of 53.33 X 8 = EUR 426.64. Thus she would have financed a total capital of EUR 12,435.23.

Solution adopted by the Court (Wife's personal settlements) :

1.

According to Mrs H.'s own documents, the capital gain on the building as a result of the work financed by the couple amounted to 104,000 euros, after deduction of :

-the value of the land (EUR 26,000), according to the donation made to Patrick J.,

-the value of the entire property on the date of the reversion (EUR 130,000).

This added value represented 74.29 % of the work. As a result, Mrs H. would only have financed an increase in value of EUR 9,238.13. This was on the date of the contractual right of return (12,435.23 X 74.29%).

2.

However, between 12 November 2012 and 22 September 2015, the date of Joseph J.'s death, Mrs H. benefited from free use of the property under an agreement entered into with Joseph J. at the same time as he donated bare ownership of the property to her;

In view of the amortisation schedule for the C. habitat loan, she only had to pay the balance of this loan for a further 34 months, i.e. the sum of EUR 1,813.22 in capital (34 X EUR 53.33), representing an additional increase in the value of the property of EUR 1,347.04 (74.29%), bringing the total increase in value to EUR 10,585.17 (9,238.13+1,347.04);

Consequently, while there may have been an enrichment on 12 November 2012, this was no longer the case on the eve of the death, in the absence of any payment of occupancy indemnity by Mrs H. during this period for this house - comprising, according to the deed of gift, in the basement, a garage, a boiler room and a room, on the ground floor, a large room used as a kitchen, lounge, living room and a WC, and above, three bedrooms and a bathroom - which, taking into account the 34 months that had elapsed, rightly compensated for the aforementioned increase in value.

3.

What's more, it has to be said that, although Mrs H. took out the loans and contributed to their payment by paying her remuneration into the joint account, she did so in her personal interest, since the purpose was to finance the construction of the house into which she moved with her partner on 1 January 2009According to the certificate of residence issued by the mayor of the municipality on 18 February 2020, this expense is treated as a housing expense, deducted in the same way as the couple's other expenses from the same joint account, which is funded by each person's salary.

She also did so at her own risk. Since she had not entered into any agreement with her partner to acquire any rights over the house. This was despite the fact that it was built on land that belonged solely to him and was subject to a contractual right of return.

Wife's personal rules

Consequently, the impoverishment that would have resulted and the correlative enrichment of Joseph J., on the day of the exercise of the right of return, are not without cause either.

In the light of these factors, not only was there no enrichment at the date of the claim. But any enrichment that may have existed previously was not unjustified.

The judgment will therefore be confirmed insofar as it rejected Mrs H.'s claim for compensation.

Colmar Court of Appeal, 2nd Civil Division, 17 June 2021, RG no. 19/03127