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Case Law
The rights of the sole trader in his former principal residence are subject to seizure
Publié le null - Directorate for Legal and Administrative Information (Prime Minister)
In divorce proceedings, when the exclusive enjoyment of the family home is attributed to the former wife of the sole trader, the property becomes liable to seizure by the professional creditors of the sole trader. This is what the Court of Cassation said in a judgment delivered by the Commercial Chamber on May 18, 2022.
An individual contractor was put into receivership on June 23, 2017. His liquidator was allowed to auction off the entrepreneur's former family home, which he still owns with his ex-wife. However, the exclusive enjoyment of this property was attributed to the latter during their divorce proceedings in 2010. She appealed to the judge to challenge the order authorizing the sale of her home.
The Court of Appeal upheld the applicant's application. In its decision, the court held that the dwelling in question constituted the principal residence of the entrepreneur and that it was therefore elusive despite the fact that the property was exclusively enjoyed by his ex-wife.
The Court of Cassation quashes and quashes the decision of the Court of Appeal.
The Court held that the collective proceedings against the contractor had been initiated afterwards the order conferring exclusive enjoyment of the family home on his ex-wife. This is sufficient to indicate that the dwelling concerned is no longer the principal residence of the entrepreneur and that the rights which he owns in this property are therefore liable to seizure by the liquidator.