The consequences of a divorce for your business: do you still have to pay compensation to your ex-partner?

However, even in a marriage under the statutory regime, it is also possible for the shares in your company not to belong to the joint estate and therefore to remain entirely separate property. This is the case, among other things, if the company was incorporated before the marriage, or if it was incorporated during the marriage but expressly with so-called “separate” funds.

It was on this latter situation that the Constitutional Court ruled on 5 March 2026. The Court once again clearly set out the relevant principles. More specifically, the case concerned two spouses who had been married under the statutory regime since 2002 and divorced in 2022. The dispute concerned a company incorporated by the husband shortly after the marriage, but with his separate funds. Both spouses were directors, worked full-time for the business, and received the same monthly management remuneration.

The Court first held that both the shares in the company, which had been incorporated with separate funds, and the increase in value of those shares during the marriage belonged to the husband’s separate estate. His wife could therefore not claim any entitlement to the shares themselves, and those shares remained his after the divorce.

The Court nevertheless considered that, within a statutory regime, it would not be acceptable for a spouse to deprive the joint estate of the income from his professional activity by carrying out that activity through his own company. The professional income of both spouses must therefore, in principle, accrue to the joint estate of both spouses. The same would also have applied if the spouse had carried on the business through a sole proprietorship rather than through a company.

The solution is found in Article 2.3.44, paragraph 1 of the Civil Code (Article 1432, paragraph 1 of the former Civil Code). Under that provision, a spouse owes compensation to the joint estate whenever that spouse has derived a personal benefit from the joint estate. Since the spouse’s professional income belongs to his separate company, that spouse is therefore liable to compensate the joint estate in an amount equal to the income that the joint estate would have received if the professional activity had not been carried out through a company. In principle, that compensation includes the increase in value of the business during the marriage.

This interpretation is certainly not new. In a judgment of 6 May 2024, the Mons Court of Appeal had already ruled that a doctor who practised medicine through his own company owed compensation, upon divorce, to the joint estate for the income from the medical activity that the joint estate had missed out on because the activity was carried out through a separate company.

An important point to note is that, since the Act of 22 July 2018, a similar arrangement for spouses married under the statutory regime who exercise their profession through a company has been enshrined in law in Article 2.3.44, paragraph 2 of the Civil Code. In the case discussed above, no reliance was placed on this new provision, since it applies only to the impoverishment of the joint estate from 1 September 2018 onwards.

It must be emphasised that this compensation obligation and the case law mentioned above apply only to marriages governed by a community property regime. Marriages under a separation of property regime, or relationships outside marriage such as legal or de facto cohabitation, do not fall under these rules.

For entrepreneurs, it is therefore crucial to consider in advance the rules relating to their marital property regime and to work out a tailored arrangement through a marriage contract. After all, many entrepreneurs are not able, in the short term, to free up the financial resources needed to pay such compensation in the event of a divorce. A divorce can therefore have a major impact on your business.

Our experts at PKF BOFIDI can of course support and guide you in this regard.
Please feel free to contact our team via info@pkfbofidi.com.