Joint tax liability between former spouses and former PACS partners: how can you be released from it?

Divorce or the dissolution of a PACS does not end joint and several tax liability for the years of joint taxation: the tax authorities may still claim from one former partner the tax owed by the couple, including where it arises from the income or the fraud of the other.

Many separated people discover this rule years after their separation, on receiving a formal notice to pay or discovering that their bank account has been attached, for a debt arising from a tax reassessment of their former partner.

The law provides two ways of being released from it: a discharge as of right, under Article 1691 bis of the French General Tax Code (Code général des impôts, CGI), and a discretionary discharge, created by the Law of 31 May 2024 in Article L. 247 of the French Tax Procedures Code (Livre des procédures fiscales, LPF), which has broadened the options for obtaining a discharge.

1. How far does joint tax liability within a couple extend?

Which taxes may be claimed from one member of the couple?

Spouses and PACS partners are jointly and severally liable for income tax where they are taxed jointly, and for the residence tax on second homes where they live under the same roof. This liability also extends to the development tax (taxe d’aménagement) and related penalties, and to the preventive archaeology tax, and a comparable rule applies to the real estate wealth tax (IFI). It does not, however, apply to social levies on investment income (CE, 10 July 2012, no. 336492).

This liability applies whatever the matrimonial property regime, including separation of property. It allows the tax authorities to claim the household’s entire tax from either member, without having to apportion the debt between them. By way of exception, in the year of the marriage or of entering into a PACS, the couple may opt to file separate returns, which rules out joint liability for that year’s income tax.

It covers not only the tax originally declared, but also the additional tax, late-payment interest and penalties resulting from a tax audit of a year of joint taxation. This is often where the difficulty arises: a reassessment based on one spouse’s business income or fraud may be collected from the other, even if they never knew anything about it.

Does joint liability survive divorce or the end of the PACS?

Yes, for all the years in which the couple was taxed jointly. Separation does not erase past debts: it merely prevents new joint debts from arising.

A reassessment may therefore be made after the divorce in respect of a year when the couple lived together, as long as the tax authorities’ limitation period has not expired. This period is in principle three years, but may extend to ten years, in particular in the case of an undeclared activity or, under certain conditions, of undeclared accounts held abroad.

Once the tax has been issued for collection, the public accounting officer generally has four years to enforce payment. This period may, however, be interrupted, in particular by certain duly notified enforcement measures or by an acknowledgement of debt, which starts a new period running.

For the future, joint liability ends only when the members of the couple are taxed separately. For spouses, Article 6 of the CGI confines this to specific cases: separation of property without living under the same roof, divorce or legal separation proceedings with authorisation to live apart, or desertion of the marital home where each spouse has separate income. These conditions are strictly applied. Divorce itself results in separate taxation for the year in which it occurs. For PACS partners, it is the dissolution of the pact that makes each personally taxable, from the year in which it ends.

Death is not treated as a separation: the surviving spouse remains liable for the couple’s tax debts and cannot benefit from the discharge mechanisms. The Conseil constitutionnel has held this exclusion to be constitutional for the discharge as of right, since the surviving spouse, as heir of the deceased, is not in the same situation as a divorced or separated person (Decision no. 2013-330 QPC of 28 June 2013). The surviving spouse may then only seek the ordinary discretionary remissions, of tax in cases of hardship or indigence, or of penalties.

2. How can a discharge of joint tax liability be obtained?

What are the conditions for the discharge as of right under Article 1691 bis of the CGI?

Article 1691 bis of the CGI gives separated persons a genuine right to be discharged from the payment obligations it lays down, as well as in respect of the real estate wealth tax, subject to three cumulative conditions.

The first is the end of the couple’s life together, assessed at the date of the application. It is established in four exhaustively listed cases: divorce or legal separation has been granted; the dissolution of the PACS has been registered; the persons concerned have been authorised to have separate residences; one of them has deserted the marital home or shared residence.

While the couple continues to live together, however, discharge is ruled out, whatever the matrimonial regime: the Conseil d’État has held that spouses who have not separated cannot be regarded as third parties in relation to each other (CE, 16 February 2015, no. 373976). Only the ordinary discretionary remissions then remain available.

The second concerns the applicant’s tax conduct: they must have complied with their filing obligations since the separation and must not have attempted, together with their former partner, to evade payment of the tax fraudulently, for example by organising their own insolvency. The Conseil d’État thus upheld the refusal of a discharge to a legally separated wife who, together with her spouse, had, a few months after the tax was issued for collection, given their children movable property they owned jointly (CE, 3 June 2019, no. 419223).

The third is a marked disproportion between the tax debt and the applicant’s financial and asset position, net of charges, assessed at the date of the application. Since the Finance Law for 2022, this disproportion is assessed over a period not exceeding three years: it is established if the applicant cannot settle the debt within that period, as confirmed by the Minister for the Economy in a ministerial answer published in the Journal officiel of 14 November 2023 (written question no. 10665, p. 10210).

In practical terms, an applicant who owes 90,000 euros, has only 15,000 euros a year left after charges and has no assets other than their main residence, which the tax authorities exclude from the assessment, could settle only 45,000 euros in three years: the disproportion is established.

For the main joint taxes, the discharge does not necessarily erase the entire debt. For income tax, the applicant remains liable in particular for the portion corresponding to their personal income and half of the joint income; for the real estate wealth tax, for the portion corresponding to their own assets and half of the jointly owned assets; for the residence tax on second homes, the discharge covers half of the charge. Where the additional tax arises from the former partner’s own income, the discharge also extends to all the corresponding late-payment interest and penalties. Finally, if in hardship or indigence, the applicant may seek a discretionary remission of the remaining share of income tax or residence tax.

What does the discretionary discharge created by the Law of 31 May 2024 change?

Law no. 2024-494 of 31 May 2024 created, in Article L. 247 of the LPF, a discretionary discharge that does not require a marked disproportion, a condition which had until then excluded many people who had nothing to do with the debt. A separated person who meets the conditions relating to the end of the couple’s life together and to tax conduct may be regarded as a person liable for taxes owed by a third party and obtain a discharge of liability on that basis. This mechanism has applied since 2 June 2024; it also benefits applications for discharge which, at that date, had not given rise to a final decision by the tax authorities or to a court decision having become res judicata.

It is aimed in particular at situations of domestic violence and at debts arising from activities of the former partner in which the applicant did not participate and from which they derived no benefit. According to the review published by the tax authorities one year after the reform came into force, 88% of the decisions made under the reformed scheme resulted in a discharge, compared with 39% in 2023 under the former regime.

The two routes may be combined: the discretionary discharge may be requested directly, or after a refusal of the discharge as of right for lack of a marked disproportion.

3. What can be done if the tax authorities refuse?

How can a refusal of discharge be challenged in court?

The tax authorities have six months to rule on an application for discharge as of right, a period that may be extended by up to three months. Where they request additional documents required to examine the application, this period is suspended until the date set for their production, unless they are provided earlier. In the event of a refusal, whether express or resulting from their silence at the end of that period, the administrative tribunal must be seised within two months, failing which the claim is time-barred. This litigation, distinct from disputes over the assessment and the collection of tax, falls within the court’s full jurisdiction.

The Nice administrative tribunal clarified this in a judgment of 1 December 2022 (no. 1906196): the judge examines the applicant’s rights in the light of all the factual circumstances and, where appropriate, determines the extent of the discharge directly. The same judgment holds that a conviction for tax fraud, which punishes conduct at the stage of the assessment of tax, is not sufficient to establish a fraudulent attempt to evade its payment. The applicant may not, however, produce before the judge any documents other than those attached to the application, or rely on facts other than those set out in it.

A refusal of the discretionary discharge is subject to a different remedy: as it is a discretionary measure, it can only be challenged by an application for annulment (recours pour excès de pouvoir), brought within two months. The judge then merely checks that there is no error of law, error of fact or manifest error of assessment, without substituting their own assessment for that of the tax authorities.

In both routes, the quality of the file is therefore decisive: the valuation of assets, the applicant’s charges and the evidence showing that they had no involvement in the reassessed income must be gathered from the outset.

Where the reassessment itself appears open to challenge, it is also possible to contest whether it is well founded by means of a formal tax claim. If that claim includes an express request for a stay of payment, the taxpayer may defer payment of the disputed part of the debt, subject where applicable to the provision of security.

Can sums already paid be refunded?

Yes, but to a limited extent. The discharge as of right, like the discretionary remission of the balance, may give rise to a refund of the sums collected from the date of one of the events establishing the end of the couple’s life together. A person granted a discretionary discharge may also obtain a refund of payments made after the end of the couple’s life together which exceed any share remaining payable by them, as clarified in a ministerial answer published in the Journal officiel of 3 February 2026 (written question no. 9614, p. 859).

Sums paid or seized while the couple lived together, however, are not refunded. A person who discovers the debt while still married therefore has every interest in initiating separation proceedings promptly rather than waiting for attachments before acting.

An application for discharge does not in itself suspend enforcement: the tax authorities may continue to carry out attachments while it is being examined. An attachment of a bank account must, however, leave the account holder with an unseizable minimum balance. It is often useful, alongside the application, to ask the public accounting officer for time to pay while the application is examined.

Based in Nice, the Valenor firm assists former spouses and former PACS partners facing the collection of a tax debt of the couple, from the preparation of the application for discharge, whether as of right or discretionary, through to proceedings before the administrative tribunal.

We examine whether the conditions for a discharge of joint liability can be met, build a complete file from the outset and defend the applicant’s rights at every stage of the procedure, including to obtain the refund of sums already collected.

Bruno Gherardi
Tax lawyer in Nice - Cabinet Valenor