Extract
[...] In fact, for a long time, many spouses did not benefit from any legal recognition or social protection since the spouse generally did not have a participation or a real legal role in the created company. This 'legal invisibility' therefore posed a problem. Thus, in 2005, the law requires the merchant to choose a status for their spouse who regularly collaborates with the activity. Since the Pact Law of 2019, the publication of this status is even mandatory. The declaration is made at the single window. Three codified statuses at Article L121-4 of the Commercial Code exist today: collaborator, employee or associate. Each has consequences. [...]
[...] This status ensures a certain economic independence of the spouse, but involves a higher cost for the company. Finally, the spouse associate status requires a company creation. The spouse then holds shares and participates in decision-making. This status promotes legal equality between partners and truly values the spouse's investment, but it also leads to a sharing of risks and a dilution of control. Thus, the obligation to choose a status prevents one of the partners from becoming a free labor force, it is an instrument of protection, transparency and recognition. [...]
[...] Commercial activity, defined by the Commercial Code as, among other things, the purchase of goods for resale or the sale of services, is generally exercised by a merchant. The latter, who performs commercial acts habitually and independently, does not usually act alone. In fact, his concubine, his civil partner or his spouse, that is to say, his partner, often contributes largely to the activity and this, from its creation. Therefore, the creation of a commercial activity by partners exposes the spouses to economic and social risks. [...]
[...] In this regard, the legislator has introduced protection mechanisms, such as the insaisissabilité of the main residence, automatic since 2015. Or, in 2022, the establishment of the new unique status of individual entrepreneur, which established a separation of law between professional and personal assets, thus limiting the threat weighing on the spouse. However, these protection devices do not completely eliminate the risk: in the event of bad management or default, the couple's assets remain exposed. Thus, commercial law implies, from the creation of an activity by a couple, a reflection on patrimonial protection. [...]
[...] The SARL is often used, as its management is simple and it offers real asset protection. As for the SAS, it promises great contractual freedom: the statutes can precisely organize the distribution of powers and anticipate crisis situations between partners. On the other hand, the partnership in collective name is a risky model: partners are jointly and severally liable for debts, making this structure unsuitable in many cases. The company is not only a tool for protection, it also allows for more equitable legal recognition. [...]
