Spouse Status in Business: Collaborator, Associate, or Entrepreneur

Extract

[...] In conclusion, considering the objective of protecting the personal assets of the merchant and those of his partner, the best starting point would be that of individual entrepreneur. Illustration : CE March 2016, M.D : the CE recognized that an EI, even before the reform, could have two distinct assets in the context of the EIRL. Historical continuity: the 2022 reform generalizes the principle and simplifies it. III) The entrepreneur's assets ? personnel and professional The general principle is that of the unity of patrimony, but this principle faces many disadvantages that have led to seeking solutions to overcome the difficulties. [...]

[...] This status confers two distinct patrimonies, therefore a protection vis-à-vis creditors. The general pledge right is now regulated, each patrimony is responsible for its own debts. The common residence is not subject to seizure by right, other personal property can also be declared not subject to seizure. The regime of separation of assets ensures that the spouse's assets will never be exposed. If she participates in the activity she will have to choose a clear status (preferably the status of an employee). [...]

[...] The debtor's assets are the common pledge of the creditor or creditors. The risk for the merchant is that his personal assets respond to the debts of the company (except main residence since the "Macron" law). In addition, if the merchant is married under a community regime, the entire assets acquired, including those of the spouse, will respond to the commercial debt." To address its difficulties, a first solution was considered, the creation of a structure with moral personality in order to be able to separate the merchant's assets, between personal and professional assets. [...]

[...] This insaisissabilité prevents creditors from seizing the property, whether it is by law or results from a declaration before the notary has effect only with regard to professional creditors, those whose rights arise in connection with the professional activity of the entrepreneur. This insaisissabilité is distinct from the separation of patrimonies, additional protection that will protect the main residence. Limited interest ajd ? efficacy of the separation patrimoine/personal Illustration : Cass. 3e civ February 2014 : the protection of the main residence is effective as of the entry into force of the law and binds professional creditors, except for fraud. Conclusion : Marcel, as a sole trader and in his own name, is automatically an individual entrepreneur. [...]

[...] - Spouse associate : that person who participates in the activity of the company and has made contributions to the company, he has the quality of associate in the sense of article 1832 of the civil code, he is both spouse and associate. This double quality gives him rights related to his status as associate. Rights of control, administration of the company and a vocation to the benefit - Conjoint salarié : default status in the absence of a choice, the spouse is considered an employee when they actually participate in the company in an official and habitual capacity and receive a salary and have a employment contract. Specificity compared to the employment contract, we do not require a subordinate relationship. [...]