Do You Need Your Spouse's Consent to Sell French SAS Shares?

Selling SAS shares while married: the answer most articles get wrong

The question arrives at every closing with a married seller: does the spouse have to consent? For French SAS shares, the usual answer is no — and the reason is precise. The Civil Code's two protective mechanisms for spouses married under a community regime — the joint-consent requirement of Art. 1424 and the associé-status claim (revendication) of Art. 1832-2 — apply to droits sociaux non négociables: SARL parts, SNC parts, société civile parts. SAS shares are negotiable securities, and the treatise states the consequence without hedging: those protective provisions are inapplicable to the SAS. The registered spouse manages and disposes of the shares alone.

But « usually no » is not « never » — and the real traps sit exactly where sellers stop reading. Divorce throws community shares into an indivision where one spouse alone can no longer sell. Contributing assets to an SAS — an immovable, a fonds de commerce, SARL parts — triggers Art. 1424 at the apport stage. Dividends paid to the wrong spouse must be paid again. Shares bought with inherited money fall into the community without a reinvestment declaration. And PACS partners, SARL sellers and international couples each run on different rules. This guide maps the whole terrain: when the sale truly runs on one signature, when it does not, and what the buyer's counsel will ask for either way.

The one-signature rule: title, management and the community behind them

Who is the shareholder. Under the legal community regime, the spouse in whose name the share account is opened has, alone, the quality of shareholder — even where the purchase was financed with community funds. The courts draw the classic distinction between the titre (the shareholder status, personal to the registered spouse) and the finance (the shares' value, which belongs to the community): the registered spouse votes alone at collective decisions, receives the dividends, and needs nobody's countersignature for the corporate life of the holding — a rule applied even against the deceased spouse's heirs, the shares not falling into indivision with the children at the other spouse's death (CA Versailles, 7 December 2000).

Who can sell. Each spouse has the power to manage and dispose of community property alone, answering only for faults of management (C. civ. Art. 1421); the exceptions of Art. 1424 concern other assets — not shares. And toward third parties, a spouse presenting alone to deal with a movable they individually hold is presumed, in favour of third parties in good faith, to have the power to act alone (Art. 222). A custodian or issuing company must deal with the registered spouse and only with them: funds or securities deposited in one spouse's name are returned to that spouse alone, the other having no claim to restitution from the depositary (Cass. 1re civ. 3 July 2001, applied to registered shares).

What the community keeps. The money. Shares acquired during the marriage with community funds are community assets in value: the sale price falls into the community, the holding is accounted for at the liquidation of the regime, and a spouse who sold cheap to a friend answers for it as a management fault. The one-signature rule is about who acts — not about who ultimately owns the wealth. Which is why buyers' counsel, with no consent requirement to satisfy, still ask the seller to represent their marital status and regime in the SPA: the representation prices the residual characterisation and management-fault risks, without inventing a veto the law does not give.

Where consent really is required

The joint-consent rules exist — they simply attach to different operations than the sale of SAS shares:

• After divorce (or any dissolution of the community) — the shares fall into post-community indivision: a cession by one ex-spouse alone is inopposable to the other, the shares' value at partition entering the mass to divide (Cass. 1re civ. 7 October 2015, n° 14-22224); pending partition the ex-spouses must even be represented by a single agent toward the company. Every sale mandate signed mid-divorce should be re-examined on this rule;
• Contributing community assets to the company — both spouses must consent to the apport of the family-home rights, furnishing movables, immovables, a fonds de commerce or exploitation of the community, non-negotiable droits sociaux, and registered movables such as aircraft and boats (Art. 1424); a spouse exceeding their powers exposes the act to annulment on the other's demand, absent ratification (Art. 1427);
• Alienating the enterprise the spouse works in — whatever the matrimonial regime, where the spouse participates in the professional activity, their consent is needed to alienate or contribute the elements of the fonds essential to the exploitation (C. com. Art. L 121-5), on pain of annulment;
• Securing someone else's debt — spouses cannot, one without the other, charge community property as security for a third party's debt: a pledge of community shares for another's borrowing takes both signatures;
• The family home — under every regime, neither spouse can dispose alone of the rights securing the family's housing: relevant where the home sits inside the structure being reorganised.

One characterisation rule completes the map. Shares bought during the marriage with the proceeds of a spouse's own (propre) assets — an inheritance, a pre-marriage sale — become community property unless the purchase carried a reinvestment declaration (déclaration de remploi): without it, the shares do not take the « propre » quality (Cass. 1re civ. 5 March 1991, n° 87-18298). A seller who believes they are selling personal property may be selling community value — with the settlement consequences that follow at divorce or death, even though the sale itself remains valid on their single signature.

Your situation, the applicable rule

Pick your configuration — the check shows whether a second signature is needed and why.

The SARL contrast: where the spouse really does hold cards

Everything changes when the instrument is a part sociale. For SARL, SNC and société civile parts — non-negotiable droits sociaux — the two protective mechanisms apply with full force. Under Art. 1424, a spouse cannot alienate community parts without the other's consent: the cession itself needs two signatures. Under Art. 1832-2, a spouse employing community property to make an apport or acquire non-negotiable parts must notify the other, and the notified spouse can claim the quality of associé for half the parts — at the company's formation or during its life, including at cessions. In an SARL, in other words, the non-registered spouse holds both a veto and an option; in an SAS, neither.

The practical consequences run in both directions. A married SARL seller must build the spouse's consent — and the renunciation of the revendication — into the deal documents from the term sheet. And the contrast is one more quiet argument in the SARL-to-SAS transformation analysis: after transformation, the shares are negotiable, the spouse's statutory cards fall away, and the couple's economics run through the community's value rules alone — a shift both spouses should understand before the transformation is voted. Two spouses can, of course, both be shareholders of the same SAS, even funding their positions entirely with community assets (C. civ. Art. 1832-1): each then holds their own registered quality, votes their own shares, and receives their own dividends — the company paying a spouse's dividends into the other's hands discharges nothing unless the entitled spouse's agreement is proved (Cass. 1re civ. 5 November 2014, n° 13-25820).

PACS partners and international couples

PACS. The partner regime turns on the pact's date. For pacts concluded before 1 January 2007, assets acquired for value after the pact are presumed indivis by half unless the acquisition document provides otherwise — shares subscribed after the pact are co-owned by law, the contributing partner needing the co-owner's agreement to deal with the indivis asset, even though the associé quality belongs to the partner who made the apport. Since 1 January 2007 the default is separation of assets — each partner acquires and disposes alone — unless the partners opted into an indivision regime, which restores the co-ownership logic. The drafting answers are the same as for spouses: read the pact, read the subscription documents, and remember the bylaws can extend the agrément machinery to transfers involving a partner, indivis rights included.

International couples. Which matrimonial regime governs is itself a conflict-of-laws question: marriages concluded from 29 January 2019 fall under EU Regulation 2016/1103 (spouses' chosen law, or default connecting factors led by the first common habitual residence); marriages from 1 September 1992 to 28 January 2019 under the Hague Convention of 14 March 1978 with its designation and mutability rules; older marriages under the prior French conflict case law built on the first matrimonial domicile. The stakes are concrete: a couple married abroad may live under a community regime without knowing it, or under a foreign separation regime that French practice will respect; the seller's « I am separate as to property » is a legal conclusion, not a fact, until the applicable law is identified. Cross-border sellers should have the regime determined — and, where useful, documented by a notary's certificate — before the SPA's representations state it. For the rest of a cross-border sale (screening, filings, registers), see our seller's guide.

The edge cases that actually reach lawyers

Pick the scenario — the check gives the rule and the case law behind it.

What the closing file should contain — on either analysis

Because the consent question is regime-dependent and the buyer's counsel cannot audit a marriage, practice standardises the paperwork. The SPA's representations state the seller's civil status, matrimonial regime (or PACS terms), the absence of divorce proceedings, and the characterisation of the shares (community, propre with remploi, indivis); the seller carries the risk of what they misstate. Where any doubt exists — a pending divorce, a foreign marriage with an undetermined regime, an old PACS, shares traceable to mixed funds — the pragmatic instruments are a notary's certificate on the applicable regime and, frequently, a spouse's intervention at closing: not because the law requires consent to sell negotiable shares, but because a signed acknowledgment extinguishes tomorrow's argument about management faults, characterisation and settlement values at the price of one signature today. Family-business bylaws sometimes go further and install a contractual spousal-consent clause or extend the agrément to transfers involving spouses and partners — check the bylaws before declaring the question closed. Where the marriage is genuinely mid-crisis, the sale calendar and the family settlement should be sequenced deliberately: the indivision rule after dissolution turns a one-signature closing into a two-signature one, and no SPA representation repairs a sale the co-owner can disregard.

Frequently asked questions about spouse consent and French SAS shares

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal advice. Matrimonial questions sit at the crossroads of company law, family law and private international law; always seek qualified legal advice — and, where relevant, a notary's — before selling, contributing or settling shares held within a marriage or a PACS.