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28 octobre 2026

Divorce or separation: sell the apartment or buy the other out?

The three options available, the rules you need to know and who does what, explained simply.

When a couple separates or divorces, there are three routes for an apartment owned by both of you: selling it and sharing the price, buying out the other's share by paying a balancing sum known as a soulte, or keeping it together in joint ownership (indivision). The choice depends on your situation (marriage, Pacs or cohabitation), the outstanding loan and the value of the property. A joint valuation, followed by the advice of the notaire (French notary) and, in the event of divorce, of your lawyers, helps you decide with peace of mind.

Sell, buy out or keep it jointly: what are the three options?

As regards the home, Service-Public (the French administration's official website) describes three possibilities in the event of divorce. None is better in absolute terms: everything depends on your situation and your plans.

Selling the apartment and sharing the price

The two owners sell the property together. The price repays the loan, if one remains, and the balance is then shared between you according to your respective rights. Our article on the key steps of a sale in Beausoleil describes how it unfolds.

Buying out the other's share

One of you keeps the apartment and pays the other a sum known as a soulte (balancing payment): according to Service-Public, this is the sum paid at the time of the division by the person who receives a share worth more than their entitlement. This solution requires agreeing on the value of the property and, often, obtaining financing.

Keeping the property jointly

You may remain owners together, for example in order to let the apartment. After a divorce, the common property then becomes property held in indivision (joint ownership between heirs or co-owners). A convention d'indivision (joint ownership agreement), concluded before a notaire (French notary), may set out the rules for its use. It is drawn up in writing, for a maximum of five years (renewable) or for an indefinite period.

No one may be compelled to remain in indivision: the division may always be requested, unless it has been deferred by judgment or by agreement (Article 815 of the Code civil, the French Civil Code). And the person who occupies the jointly owned home alone is, unless otherwise agreed, liable to pay compensation (Article 815-9).

Married, in a civil partnership (Pacs) or cohabiting: who must consent to the sale?

If you are married

Without a marriage contract, you fall under the communauté réduite aux acquêts (community of property limited to assets acquired during the marriage): every asset is presumed to be common property, unless proven otherwise, and the sale of a property that belongs to both of you requires the consent of each of you. Under séparation de biens (separation of property), each spouse remains the owner of their personal assets; properties bought in indivision are divided according to the shares set out in the deed.

In addition, there is a protection specific to marriage (Article 215 of the Code civil): spouses may not, one without the other, dispose of the family home, even if it belongs to only one of them. Failing this, the spouse who did not consent may seek the annulment of the transaction within the year following the day on which they became aware of it.

If you are in a Pacs

If your Pacs (French civil partnership) does not contain any specific provisions, your assets are separate. For a home bought together, each partner's share then depends on the purchase deed; if nothing is stated in it, you are each deemed to own one half.

If you are cohabiting (union libre)

A home bought together is property held in indivision, owned in equal halves unless a different split is set out in the deed. In the event of a persistent disagreement at the time of the division, you may apply to the tribunal judiciaire (French civil court).

If one of you refuses to sell

In indivision, a sale in principle requires the consent of all the co-owners (Article 815-3 of the Code civil): an apartment owned by two people is sold by both. Failing agreement, it is for the judge to decide: the court-ordered division procedure (partage judiciaire) is open to former spouses, Pacs partners and cohabiting partners. Since the law of 7 April 2026, the president of the tribunal judiciaire may also authorise one co-owner to conclude the sale alone, where urgency and the common interest justify it (Article 815-6). Your lawyer will advise you on the appropriate route.

Buying out the other's share: how is the soulte calculated and what happens to the loan?

Calculating the soulte

The starting point is the current value of the apartment, which may be assessed by estate agencies or by a notaire. According to the notaires, the capital still owed to the bank is deducted from it and then, for a property owned in equal halves, the result is divided by two. This calculation may be adjusted according to your property regime and each person's contributions: the notaire draws up the final account.

The droit de partage (duty on the division of assets)

In the event of divorce, where the spouses own a property that is common or held in indivision, the notaire draws up a notarial deed of division (acte authentique de partage). A division that follows a divorce, a legal separation (séparation de corps) or the dissolution of a Pacs is subject to a duty of 1.10%, calculated on the net assets divided, that is, after deduction of debts. This reduced rate, provided for by Article 746 of the Code général des impôts (French General Tax Code), does not cover cohabiting partners: the notaire works out the duties payable by them on a case-by-case basis.

The outstanding mortgage

Divorce or separation does not bring the loan agreement to an end. If you borrowed jointly, the bank may claim the monthly repayments from each of you. Service-Public sets out three solutions:

  • repaying the loan early, for example through the sale of the property;
  • asking the bank to release one of the co-borrowers from the loan (désolidarisation): if it agrees, the other remains solely responsible for the repayments;
  • offering the bank a new guarantee or a new guarantor.

In the last two cases, the bank's agreement is essential: it is best to consult it before committing yourself.

Before, during or after the divorce: when should you sell?

There is no ideal moment that holds true for everyone.

Divorce by mutual consent

Each spouse chooses their own lawyer. The liquidation, that is, the valuation of the assets and debts in order to determine each person's share, must be carried out before the divorce agreement is registered by the notaire. The fate of the apartment is therefore settled at this stage: sale, allocation to one of you with a soulte, or a convention d'indivision.

Divorce before the judge

The liquidation and the division may take place at any time, before or after the divorce is granted: the law sets no time limit.

Does selling before the divorce avoid the droit de partage?

Not necessarily. According to the French tax authorities, the droit de partage is payable only if a deed records the division. However, according to a ministerial reply of 1 September 2020 reported by the Chambre des notaires de Paris (Paris Chamber of Notaries), where spouses married under the community property regime sell their property and then divorce by mutual consent, the sale price must appear in the liquidation deed: the droit de partage is then in principle due at the time of the divorce. Your lawyer will tell you how matters stand in your case.

Capital gains tax: what happens if one of you has already left the home?

The capital gain made on the sale of the main residence is exempt from tax, provided that the home is your main residence at the time of the sale.

The tax authorities nevertheless accept that the person who has already left the home retains the exemption if three conditions are met:

  • the home was the couple's main residence at the time of the separation;
  • it was occupied by the other member of the couple until it was put up for sale;
  • the sale takes place within a normal period of time.

A period of one year is in principle a maximum, but each situation is assessed according to its circumstances: local market, asking price, characteristics of the property, steps taken to sell. This measure applies to spouses, Pacs partners and cohabiting partners.

By contrast, the exemption does not apply to a home that is let on the day of the sale: a point to bear in mind if you are considering keeping the apartment in order to let it. Where no exemption applies, the capital gain is subject to income tax at the rate of 19% and to social levies (prélèvements sociaux) at the rate of 17.2%, taking into account allowances linked to the length of ownership. The notaire handling the sale calculates the tax and prepares the return.

Valuation, notaire, lawyer: who does what?

Whether you sell or buy out, everything starts from a figure accepted by both of you: the value of the apartment. A valuation prepared for the two of you, based on the same information and delivered to each of you in the same terms, provides a common basis for discussion.

If you decide to sell, the sales mandate (mandat) is signed by both owners, and the choice between a simple mandate and an exclusive mandate is likewise made together.

The notaire draws up the liquidation and the deed of division. The lawyer, who is mandatory for a divorce, advises you and defends your interests. The agency values the property and conducts the sale. It does not give personalised legal or tax advice: for your own situation, your notaire and your lawyer remain your points of contact.

In Beausoleil and the towns close to Monaco

In Beausoleil, Cap-d'Ail, Roquebrune-Cap-Martin, La Turbie or Menton, many homes are apartments in co-owned buildings (copropriété). Some are second homes, sometimes held by owners who live in Monaco or in Italy. Three points then deserve attention.

  • Second home. The protection of the family home concerns the main residence only. The consent of both owners nevertheless remains necessary where the property is common or held in indivision, and the main residence capital gains exemption does not apply.
  • Owner resident outside France. The capital gain is governed by rules specific to non-residents: according to impots.gouv.fr, a levy at the rate of 19%, to which social levies are added. The notaire checks the regime applicable to each owner.
  • Marriage celebrated abroad. The rules vary from country to country: Service-Public recommends asking a notaire about the applicable matrimonial property regime.

How Transal Properties supports you

Transal Properties welcomes you at 10 boulevard de la République, 06240 Beausoleil. You may request a free, no-obligation valuation: it gives you a figure on which to base your discussions between yourselves, with your notaire and your lawyers. If you decide to sell, we support you at every stage, through to the signing at the notaire's office. Every situation is handled with discretion.

Laura-Lynn Nacher de Coster, Managing Director of Transal Properties

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