Cass. com., 12 March 2025, no. 23-22.372
In a ruling handed down on 12 March 2025, the commercial chamber of the Court of Cassation confirmed that, under the statutory community of property regime, the husband of a spouse who has made a contribution to a company with joint assets can claim the status of partner unless there is a non-ambiguous tacit waiver. The ruling illustrates the requirements set out in Article 1832-2 of the Civil Code.
The facts: a spouse claims his status as a partner almost 15 years after notification
Mr and Mrs [N] were married without a contract in 1970, under the statutory community of property regime. In 2007, Mr [N] notified Transports [N] – run by his wife – of his intention to invoke Article 1832-2 of the Civil Code, in order to claim the status of partner to the extent of half of the shares contributed by Mrs [B] by means of common property.
Faced with his spouse’s refusal to provide him with the company documents, Mr [N] took legal action to obtain recognition of his status as a partner.
The company Transports [N] and Mrs [B] argued that Mr [N] had tacitly waived this right, in particular because each had set up their own company without cross-participation, reflecting a desire for legal and financial independence.
⚖️ The legal framework: Article 1832-2 of the Civil Code
Article 1832-2 of the Civil Code recognises the right of the non-associated spouse of a company to be recognised as a partner for half of the shares acquired or subscribed by their common spouse in property, unless otherwise stipulated or waived.
Consistent case law recognises that this waiver may be express or tacit, but must result from unequivocal behaviour that is incompatible with the exercise of the right of association.
🧾 The decision: no waiver established in this case
The Aix-en-Provence Court of Appeal, ruling on referral after cassation, had granted Mr [N]’s request and recognised him as a partner since 2007.
The Court of Cassation upheld this decision.
The Court of Cassation first recalled that:
‘(…) if the wife’s husband in a community of property who has used common assets to make a contribution to a company or to acquire non-negotiable shares in the company has the right to be recognised as a partner for half of the shares subscribed or acquired, he or she may waive this right. This waiver may be tacit and result from behaviour that is unequivocally incompatible with the maintenance of the spouse’s right to be recognised as a partner.’
For the Court of Cassation, while the concomitant formation of separate companies may demonstrate a desire for autonomous management, it is not sufficient to establish a clear and unequivocal waiver. In the absence of evidence of behaviour manifestly incompatible with the desire to be a partner, the right of claim remains. The waiver may, for example, result from a family agreement or a statutory exclusion agreement.
A strict assessment of the waiver
The Court reiterates that silence, inaction or distance between spouses in the management of their respective companies is not sufficient to establish a tacit waiver. It is necessary to demonstrate behaviour that is incompatible, constant and unequivocal with the desire to be recognised as a partner.
📌 To remember
- In a community of property regime, the non-partner spouse may claim the status of partner up to half of the shares acquired with common property (art. 1832-2 C. civ.).
- The waiver of this right may be tacit, but it must be unequivocal and result from behaviour incompatible with the status of partner.
- The mere autonomy of the spouses in their affairs or the creation of separate companies is not sufficient to demonstrate such a waiver.
Please note: If you set up a company, be vigilant and anticipate this issue by providing for the spouse’s waiver of being a partner.
It is important to determine whether or not the spouse waives his or her status as a partner beforehand in order to avoid a debate about the ownership of the company’s shares.
Article written by Olivier VIBERT, partner at KBESTAN
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