Founding a business or a business is an adventure that is often lived together. Many spouses and especially wives, since they are mostly women, thus take an active part in the professional project of their half. But for lack of an adequate declaration, this collaboration will not produce any rights.
The law requires all entrepreneurs to choose a legal status for their partner as long as the latter regularly participates in the activity of their company. If there is no strict rule, the legislation refers to any direct, effective, habitual and professional intervention. We think, for example, of monitoring quotes and various administrative procedures such as VAT returns. Note also that this assessment is not based on the number of hours worked.
A declaration is necessary for your couple? It will be necessary to choose the most suitable legal status among the three determined by law. And each has specific implications.
The collaborating spouse
The status of collaborating spouse targets the spouse or the PACS partner (the cohabiting partner is excluded) having neither a share in the company nor remuneration for his involvement, but who regularly intervenes in the operation of the company. Individual entrepreneur (trader, craftsman, liberal professional), sole partner of a EURL (sole proprietorship with limited liability) and majority manager of an SARL (limited liability company) or of a SELARL (liberal liability company limited) can use this status to declare their half.
The title is especially interesting for businesses, since the collaborating spouse is presumed to be an agent of the entrepreneur, which allows him to carry out management and administrative acts. He also benefits from social protection, affiliation to the old-age insurance scheme and a right to training, in return for payment of the necessary contributions. On the other hand, his involvement does not give him any right to unemployment.
The associated spouse
Any partner, spouse or PACS partner who makes a financial contribution, in kind (patent, machine) or in industry (through his work, his technical knowledge, his services) in the company of his dear and tender can obtain shares which will allow him to be declared as an associated spouse. No matter the type of company, with the exception of EURL and SASU (simplified single-person joint stock company), which are logically excluded.
The legal commitment is more important here, since the partner has a right to vote at general meetings, he receives dividends in proportion to his shares and his responsibility can be engaged in the event of difficulties of the company, within the limit of amount of its contribution. Here again, a social protection system and the right to training are provided for, without however opening up rights to unemployment.
The employed spouse
Finally, the status of employee spouse guarantees the common law partner, spouse or PACS partner the same rights and obligations as any other employee. For this, his usual and professional participation in the company must be concretized by a contract of employment in due form. Be careful, however, not to inflate his salary or his working time out of complacency.
This legal framework makes it possible to separate the professional implications of the two members of the couple, since the employee who is an employee is subject to a relationship of subordination to the head of the company and must be limited to the prerogatives defined by his employment contract. Its responsibility cannot therefore be sought in the event of difficulties of the company.
Many spouses of business leaders work in the shadows. The legislator therefore decided to impose a choice by default. Under the 2019 Pacte law, the status of employee spouse automatically applies when the necessary declaration has not been made.
This measure prevents the boss from being prosecuted for covert work and protects his spouse who, for lack of status, was previously deprived of all social rights.
On the other hand, the financial repercussions can be significant in terms of crossing the thresholds of the company’s workforce or requesting regularization as long as an employment contract has not been signed and remuneration paid. To avoid these inconveniences, it is therefore better to take the initiative by making the declaration from the start.