My husband is in debt. What am I at risk of?
My husband is in debt. What am I at risk of?
I've received a considerable number of notices from the post office concerning orders to pay addressed to my husband. We're an elderly couple and my husband lives in an EMS. What should I do about this? Can I be held responsible for his debts, given that we are not married with separate property?
Louise, Geneva
When spouses are married under the ordinary regime of participation aux acquêts, each of them is liable for his or her debts out of all his or her assets. This means that assets belonging to you cannot be seized to pay your spouse's debts. However, article 200 of the Civil Code (CC) states that anyone who alleges that property belongs to one or other of the spouses must prove this. In the absence of proof, the property is presumed to belong jointly to both spouses. It is therefore advisable to keep documents proving ownership of property, such as contracts, purchase receipts and other documents showing how important items were acquired or received.
In order to take effect, the debtor must be notified of the legal proceedings. This is usually done by post. However, when this method does not work, for example because the debtor is not present or does not collect the summons to pay at the counter, other means of notification may be used. Of course, these other means incur costs that are charged to the debtor, so not recovering a writ of summons is likely to increase the final bill.
That said, article 68d of the Debt Enforcement and Bankruptcy Act (LP) provides that if a curator or authorised representative in the event of incapacity is empowered to manage the assets of a debtor who has reached the age of majority, and the Office has been notified of this, the acts are notified to the curator or authorised representative in place of the debtor.
If you have such a power of attorney from your husband, notification to your home is correct; if not, and if there is no curator appointed to look after his affairs, the payment orders must be notified to the EMS where your husband now lives.
That said, it is not uncommon for family members to deal informally with the day-to-day affairs of an elderly person; in such cases, it is prudent to ensure that payment orders are opposed so that there is time to make contact with creditors, understand the reasons for their action and try to reach an agreement, rather than letting the proceedings blindly take their course.
