Legal community and professional income in a company
The ruling no. 25/2026 of the Constitutional Court clarifies the protection of the common property. The ruling is downloadable here.
The Constitutional Court issued the 5th of March 2026 a ruling decisive for married couples under the legal regime where one of the spouses carries out their professional activity through a company. This ruling establishes a balance between the individual nature of the shares of a private company and the right of the community to receive the professional income that belongs to it.
1. The question posed to the Court
When a spouse married under the legal community regime carries out their professional activity through a company that is their own (created before the marriage, received by donation or inheritance), the profits remain in the company. They only become “common” when they are actually distributed in the form of remuneration or dividends.
This situation created a major asymmetry : an employed spouse saw all of their income fall into the community, while a spouse operating through a company could “ retain” their income within the corporate structure, thus depriving the common property.
The problem in practice
A lawyer, doctor or consultant operating in their own company (by this we mean: a company that does not fall by nature under the community regime since it was created before marriage, received by donation or inheritance) could accumulate significant reserves while only paying a minimum of remuneration to the community. Upon divorce, the capital gains from the shares and the reserves remained outside the division as they are considered separate property.
2. What the Constitutional Court says
Fundamental principle: the distinction between separate / community
When the company is a separate asset of the spouse (acquired before marriage, by donation or inheritance), the shares and their capital gains remain separate property. The separate nature of the company is not called into question.
BUT: the separate estate of the shareholder spouse owes the community estate a reward.
The mechanism of the reward (art. 1432, §2 C. civ.)
This reward is equal to the amount of the income that the community estate would have received if the professional activity had not been carried out within the framework of a company.
« The separate estate of the spouse holding the shares of the company through which they carry out their professional activity owes the community estate a reward equal to what the community estate has been impoverished by, that is to say equal to the amount of income that the community estate would have received if the professional activity had not been carried out in the framework of a company. » — Constitutional Court
3. The burden of proof
· The requesting spouse must establish the right to the reward and its extent, by every legal means, being able to require the production of documents emanating from the company
· The defending spouse can establish that the payments made correspond reasonably to the income he could have received by working outside a company
· The defending spouse can invoke economic reasons justifying that nothing more has been paid
4. Legal basis
Article 1432, §2 of the Civil Code (introduced by the law of 22 July 2018): expressly provides for the reward mechanism when the common property is deprived of income due to the exercise of a professional activity through a personal company.
Articles 1399 to 1401, 1404 and 1405 of the old Civil Code : govern the distinction between separate property and community property in the legal regime.
This document is not a legal consultation. For any questions regarding your personal situation, do not hesitate to contact us.
Our multidisciplinary team is at your disposal to assist you.