Divorce and Usufruct: When Maintenance Payments Can Be Replaced by a Right to Use Real Property

Imagine: you are a homeowner in Dijon, in the station district, and your divorce is granted on grounds of breakdown of marital life. Your former spouse, who has limited resources, requests that your duty of support (financial assistance owed to the other after divorce) take the form of granting the usufruct (right to use a property and receive its income without being the owner) of the family home. Is this possible? Until 1986, judges in Dijon were hesitant. But the French Supreme Court ruled: yes, and it overturned a decision of the Dijon Court of Appeal that refused this option.

This decision, handed down nearly forty years ago, remains relevant in Talant and elsewhere. It concerns all those who divorce and own real property. For it reminds us that the duty of support (Article 285 of the Civil Code) can be performed otherwise than by a monthly cheque. You can give your former spouse a right to use your house or flat, which secures their housing without forcing you to sell.

So, how does it work in practice? What are the pitfalls to avoid? And above all, what should you do if you are in this situation today? I will explain everything to you, step by step, with examples drawn from practice in Dijon and Talant.

The Facts: A Story Like Many Others

Mr and Mrs B. have been married for years, owners of a house in Dijon, Rue de la Préfecture. Their marital life deteriorates, and Mr B. petitions for divorce on grounds of breakdown of marital life (Article 237 of the Civil Code: divorce petitioned after two years of separation). The divorce is granted. One thorny issue remains: the duty of support. Mrs B., who did not work during the marriage, needs financial assistance. But rather than a classic maintenance payment (a sum of money paid each month), she proposes that her husband grant her the usufruct of the family home. Specifically, she could live there or rent it out, and receive the rent, until her death or remarriage. Mr B., for his part, would remain the bare owner (owner of the property without the right to use it).

The Dijon High Court accepts this solution. But the Dijon Court of Appeal, seised on appeal, rejects it. Why? The Dijon judges consider that Article 282 of the Civil Code (which lists the possible forms of the duty of support) does not mention usufruct. In their view, the duty of support can only be performed in the form of maintenance payments. Mrs B. appeals to the Supreme Court. She argues that Article 285 of the Civil Code allows performance "by the constitution of a capital sum", and that this can take the form of a transfer of assets in usufruct.

The Supreme Court rules in her favour on 25 June 1986. It quashes the decision of the Dijon Court of Appeal, holding that the judges violated Article 285 of the Civil Code. The High Court recalls that the duty of support can be paid in the form of a capital sum, and that this capital sum can be constituted by the transfer of a usufruct. A victory for Mrs B., but above all a clarification for all divorced persons in France.

The Reasoning of the Court — Analysed

The heart of the dispute concerns the interpretation of Articles 282 and 285 of the Civil Code. Article 282 provides that the duty of support (financial assistance owed to the spouse in need after divorce) can take the form of maintenance payments (periodic payments) or a capital sum (lump sum). Article 285 specifies that this capital sum can be constituted, in particular, by the transfer of assets in usufruct. But the Dijon Court of Appeal considered that usufruct was not provided for by Article 282, and therefore the duty of support could only be a maintenance payment.

For the Supreme Court, this is an error. It explains that Article 285 is a special provision that derogates from Article 282. In short, the legislature provided that the payment of a capital sum can take many forms, and usufruct is one of them. The decision of the Court of Appeal is therefore quashed, because it violated Article 285 by refusing to consider usufruct as a mode of performance of the duty of support.

Is this decision a reversal? No, it is a confirmation of an interpretation already accepted by the Supreme Court in an earlier decision of 20 March 1979. But it has the merit of clarifying matters for trial judges, especially those in Dijon, who were reluctant. Mr B.'s arguments? He argued that usufruct was too uncertain, because it could end upon his ex-wife's death, making the capital sum variable. But the Supreme Court did not accept this argument: usufruct is a real right (a right over property) that has patrimonial value, and it can therefore perfectly constitute a capital sum.

In practice, this decision means that judges cannot systematically refuse the transfer of usufruct on the ground that it is not provided for by law. They must examine each situation and decide whether this solution is appropriate.

What This Changes for You — Practically

If you are a landlord-owner in Talant, and you divorce, you can offer your former spouse the usufruct of a flat you own. For example, you have a studio flat on Rue de la République, rented out at €400 per month. You can transfer the usufruct to your ex, who will receive the rent in your place. This saves you from paying monthly maintenance payments, and your ex has a guaranteed income.

For the tenant, beware: you cannot transfer the usufruct of a property you do not own. Only the owner can do so. But if you are a tenant and your spouse is the owner, you can request the usufruct of the matrimonial home.

For the buyer: if you buy a property burdened with a usufruct (for example, you buy the bare ownership of a house in Dijon, but the seller's ex-wife has the usufruct), you must be aware that you will not be able to use the property until the usufruct ends (death or remarriage of the usufructuary).

A concrete example: in Dijon, a house worth €200,000. The usufruct of a person aged 60 is worth about 40% of the value of the property, i.e., €80,000. If the duty of support is assessed at €80,000, the transfer of usufruct can cover it entirely. Beware: the usufruct ends upon the death of the usufructuary, which can be risky if the former spouse needs a lasting capital sum. In that case, it is better to combine maintenance payments and usufruct.

If you are in this situation, you must: have the value of the usufruct assessed by a notary, ask the family court judge (JAF) to order this modality, and draw up a notarial deed. The timeframes are those of a standard divorce procedure: 6 to 18 months on average.

Four Tips to Avoid This Type of Dispute

• Negotiate amicably before going to court. Offer a transfer of usufruct to your former spouse with the help of a lawyer, explaining the tax advantages (no inheritance tax if the usufruct ends upon death).
• Have the value of the usufruct assessed by a notary. This value depends on the age of the usufructuary (tax scale). An error in valuation can lead to an imbalance and a refusal by the judge.
• Plan for the risks. If the usufructuary remarries, the usufruct ends. To secure the situation, you can stipulate that the usufruct is for life (until death) or for a fixed term.
• Record the agreement in a notarial deed. The transfer of usufruct must be formalised before a notary to be enforceable against third parties (e.g., creditors, new owners).

Further Reading: Related Case Law and Developments

Before the 1986 decision, the Supreme Court had already accepted usufruct as a mode of constituting a capital sum in a decision of 20 March 1979 (appeal n° 77-14.524). But some courts of appeal, such as that of Dijon, resisted. The 1986 decision therefore put an end to this resistance. Since then, the case law has been constant: the transfer of usufruct is a valid modality of the duty of support.

More recently, the Supreme Court clarified that usufruct could be combined with maintenance payments (Civ. 1re, 10 February 2010, n° 08-21.521). For example, if the value of the usufruct does not fully cover the need, the judge can order a supplement in the form of maintenance payments.

The trend of the courts is therefore favourable to flexibility: the duty of support must adapt to particular situations. In the future, we can expect other forms of capital to be recognised, such as the right of use and habitation (a more limited right than usufruct).

What You Must Absolutely Remember

Here are the key points in question-and-answer form:

• Can I replace maintenance payments with a usufruct? Yes, if the judge accepts it. You must demonstrate that the usufruct has sufficient value to cover the duty of support.
• How is the usufruct valued? By a notary, according to the tax scale of Article 669 of the General Tax Code (value based on the age of the usufructuary).
• What happens if the usufructuary dies? The usufruct ends, and the bare owner recovers full ownership. The duty of support ceases.
• Can I sell the property burdened with a usufruct? Yes, but you can only sell the bare ownership. The usufructuary retains their rights until the usufruct ends.
• Is the usufruct taxable? The usufructuary is taxed on the income from the property (rent). The bare owner has no tax on the property until it is sold.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →