The article 515-5-2 of the civil code lists the assets that remain the exclusive property of each PACS partner, even when the couple has opted for the regime of joint ownership. This text, introduced by the law of June 23, 2006, delineates a patrimonial boundary that many PACS partners discover late, often at the time of a separation or a real estate project.
PACS Joint Ownership Regime and Excluded Assets: The Comparative Table
The PACS allows the choice between two patrimonial regimes. The default regime, known as separation, assigns each partner ownership of what they acquire alone. The optional regime of joint ownership, on the other hand, presumes that assets acquired together or separately after the conclusion of the pact belong equally to each partner.
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Article 515-5-2 tempers this joint ownership by excluding certain categories of assets. Here is the distribution as the text provides:
| Asset Category | Separation Regime (default) | Joint Ownership Regime (optional) |
|---|---|---|
| Funds received after the PACS and not used | Exclusive ownership | Exclusive ownership (art. 515-5-2, 1°) |
| Created assets and their accessories | Exclusive ownership | Exclusive ownership (art. 515-5-2, 2°) |
| Personal assets | Exclusive ownership | Exclusive ownership (art. 515-5-2, 3°) |
| Assets acquired with funds prior to the PACS | Exclusive ownership | Exclusive ownership (art. 515-5-2, 4°) |
| Assets acquired with funds received by donation or inheritance | Exclusive ownership | Exclusive ownership (art. 515-5-2, 5°) |
| Shares acquired by auction of an already held asset | Exclusive ownership | Exclusive ownership (art. 515-5-2, 6°) |
| Real estate acquired together after the PACS | Ownership of the acquirer | Jointly owned in half |
This table highlights a point often misunderstood: even under the joint ownership regime, a significant portion of the assets escapes division. The PACS joint ownership is therefore not comparable to the legal community of marriage, where income from work automatically falls into the common pool.
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To delve deeper into the exact scope of each paragraph, the article 515-5-2 of the civil code deserves a cross-reading with articles 515-5 and 515-5-1, which respectively establish the default separation regime and the mechanism for opting for joint ownership.
Unused Funds and Personal Assets: The Gray Areas of PACS
Among the six categories listed by the text, two generate the majority of disputes between partners.
The Concept of Unused Funds
The 1° of the article refers to sums received after the conclusion of the pact “for any reason whatsoever” and not used to acquire an asset. Specifically, salaries, bonuses, and income that remain in a bank account remain the exclusive property of the partner who received them.
A salary paid into a joint account does not automatically become jointly owned. The qualification depends on the origin of the funds, not on the account into which they are deposited. This rule clearly distinguishes the PACS from marriage under the legal community, where income from work contributes to the community as soon as it is received.
Personal Assets
The 3° excludes “personal assets” without providing a precise definition. Notarial doctrine generally includes:
- Clothing, worn jewelry, and items strictly related to the daily use of one partner
- Work tools necessary for the exercise of a profession (computer of a freelancer, medical equipment)
- Compensation for bodily or moral harm, by analogy with the rules applicable in matrimonial matters
The absence of a closed legal list leaves room for judicial discretion in case of disagreement.
PACS, Marriage, and Cohabitation: What Article 515-5-2 Reveals About Patrimonial Protection
The choice between PACS, marriage, and cohabitation is often measured against tax implications or daily life. However, the patrimonial angle in the event of separation or death remains the most discriminating criterion.
Under the legal community regime of marriage, acquisitions (assets purchased during the union with the couple’s income) are shared equally. The PACS under joint ownership appears similar, but article 515-5-2 creates exceptions that the legal community does not recognize.
In matters of inheritance, the gap widens further. The married spouse is a legal heir. The PACS partner, on the other hand, does not inherit without a will, regardless of the chosen patrimonial regime. Notaries emphasize this point: a PACS without a will leaves the surviving partner without inheritance rights, whereas marriage confers at least a quarter in full ownership or the entirety in usufruct.
For cohabitants, the situation is even more precarious. No provision of the civil code grants them an organized patrimonial regime. Joint ownership, when it exists, falls under common law and must be proven asset by asset.
- Marriage offers the legal community with automatic sharing of acquisitions and a status of legal heir
- The PACS allows the option for joint ownership, but with the exclusions of article 515-5-2 and without automatic inheritance rights
- Cohabitation provides no patrimonial or inheritance framework without voluntary action (will, SCI, tontine clause)
Transfer of Shares and PACS: A Concrete Patrimonial Effect for Entrepreneurs
A rarely discussed aspect concerns PACS partners who hold shares in a company. Under the joint ownership regime, the partner’s agreement may be required to transfer shares, with a possibility of annulment of the transfer in the absence of agreement. The choice of the PACS patrimonial regime directly impacts the freedom to manage a business.
Under the separation regime, each partner freely manages their shares. Under the joint ownership regime, the question arises as soon as the shares have been acquired during the PACS with funds that do not fall under the exclusions of article 515-5-2.
Entrepreneur partners therefore have a direct interest in verifying whether their contributions come from funds prior to the PACS or from donations, two cases that maintain exclusive ownership even under joint ownership.
The PACS patrimonial regime is not a trivial administrative form. Article 515-5-2 draws a clear line between what becomes common and what remains personal. For a couple in a PACS under joint ownership, the traceability of the origin of funds during each acquisition constitutes the best guarantee against future disputes.