In a key ruling on 25 March 2025, the Court of Revision has opportunely filled a gap in the Civil Code by affirming that Monegasque law in no way prohibits the partial division of property, provided that the division is conveniently feasible, with the determination of whether it is conveniently feasible falling within the sovereign power of the trial judges, who must assess the facts and evidence submitted to them.
This ruling, which confirms the previous case law of the Court of Appeal, is a welcome contribution to case law in view of the laconic nature of Monegasque legislation on this issue, even though joint ownership is commonplace, particularly in often complex inheritance contexts.
The position of the Court of Revision should thus facilitate the dissolution of joint ownership by confirming that it is perfectly possible to proceed with a partial division, allocating part of the property to the joint owner requesting the division, while allowing the other joint owners to remain in joint ownership of the remainder of the property.
Indeed, while it is accepted that ‘no one can be forced to remain in joint ownership’ according to the formula enshrined in the Civil Code, the question of the terms of the division always raises heated debate, in a climate that is often conflictual between co-owners who are often driven by conflicting interests.
In Monaco, as in France, division in kind must always be preferred to auction, which must be ordered if and only if the properties cannot be conveniently divided.
According to established case law, the assessment of the criterion of convenient divisibility falls within the sovereign power of the trial judges. In particular, the practical difficulties inherent in the division, the costs and the complexity of the arrangements made necessary by the division will be considered.
However, once the trial judge considers that the undivided estate is conveniently divisible, division in kind must be ordered.
Indeed, division in kind is the rule and auction is the exception.
The question arises in particular when the estate consists of a single property, jointly owned by at least three co-owners, one of whom is seeking division and the others wishing to remain in joint ownership.
The Court of Revision provides an initial clarification, which seems obvious but is now worth noting: it is not necessary for the undivided estate to consist of several properties to proceed with a division in kind. Division in kind may be ordered even if the joint ownership consists of a single asset, such as a plot of land; the only thing that matters is that it can be conveniently divided, and the division may also be accompanied by a cash adjustment mechanism, the essential thing being that each of the co-owners is satisfied with their rights.
Above all, the Court of Revision confirms that it is perfectly possible to resort to a partial division, if some of the co-owners express their wish to remain in joint ownership.
In France, this possibility of ‘eliminatory allocation’ is expressly provided for in the Civil Code and allows the judge, when a request for division is brought before him by co-owners, to order, at the request of the others, that the former receive their share and that the latter remain in joint ownership.
As the Monegasque Civil Code is silent on this possibility, the Court of Revision thus paves the way for partial divisions, allowing one co-owner to be allocated a share while others remain in one or more residual joint ownerships, regardless of whether the joint ownership relates to a single property.
This shows the extent to which amicable termination of joint ownership should be encouraged. Carried out under the supervision of a notary, it preserves the interests of each of the joint owners and avoids the pitfalls of a public auction, with the risk of seeing a property significantly discounted by the bidding process.
However, if division in kind proves impossible due to the property's nature, which cannot be easily divided, an auction should then be considered, with the setting of the reserve price proving crucial to safeguard the rights of each party.
