Termination of cohabitation

Many partners choose to stop marrying but still wish to enjoy a minimum of protection. (in 2017 77,522 certificates of legal cohabitation, 44,319 marriages).

1. An essential difference from marriage is the fact that no motivation or judicial intervention is required to terminate legal cohabitation. It is done by mutual agreement by the cohabitants, or unilaterally by one of the cohabitants by means of a written statement to the civil registrar.

2. Although the termination of legal cohabitation is not further arranged, it can nevertheless have far-reaching consequences for the ex-partners. For example, discussions may arise as a result of the purchase of a family home by both partners with disproportionate payment of the price, the execution of works by one partner on a home that is the exclusive property of the other partner, claims relating to movable assets, the mixing of money from both partners in a bank account on the name of one of them, the unequal contribution to the costs of living together and the claim to obtain personal maintenance money, and so on.

3. After all, legal cohabitation has no immediate effect on the composition of the assets of both partners. In the absence of agreement to the contrary, legal cohabitants are therefore subject to a limited secondary matrimonial property regime. This system entails a separation of property. Each cohabitant retains the property of which he can prove ownership, the income from these property and the income from work. Goods of which none of the legal cohabitants can prove ownership are deemed to be in undivided ownership.

This is not accepted for de facto cohabitants. Case law states that there is no presumption of joint ownership for de facto cohabitants.[1]

It is therefore up to each ex-partner to prove which goods are part of his property. He must do this on the basis of common law. As a result, in principle, for every item that exceeds the sum or value of € 375.00, written evidence must be presented (and this in contrast to married couples who can also prove ownership of items and claims by witnesses or presumptions).

The undivided ownership that arises as a result of the termination of the cohabitation will be settled and divided according to the rules of co-ownership. In principle, no one can remain undivided undesirably, so both partners can claim the division at any time. The strict application of common law can give rise to unfair situations. Moreover, in practice there is an insurmountable problem of proof. If the cohabitation is established after the parties have already built up a certain amount of capital, drawing up an inventory (in 2 copies and signed by both) is not romantic but practical.

4. The division is made amicably or judicial. In the latter case, a notary is appointed and the liquidation-distribution procedure is applied. Until the end of this procedure, both partners must act together to manage the undivided property and make acts of disposal.

5. When 1 of the partners has invested in the property of the other, or has supported financially (e.g. payment of debts), in the absence of an agreement, compensation will only be possible on the legal basis " enrichment without cause" (there was no grounds whatsoever to make that payment). Attention: jurisdiction is strict. When this was deliberately wanted at the time, e.g. in order to maintain a relationship, it cannot be asked back. Very recently there has been a change in the approach of the Court of Cassation. Instead of self-will, a self-interest of the "impoverished" is now required (HvC 12.10.2018, AR C.18.0084.N).

It is different when there is jointly built on the personal property of 1 of the two partners. For example, the Court of Appeal in Ghent (11 ° chamber)[2] ruled that in a context of de facto cohabitation, it may then be decided, depending on the circumstances, to waive the right of accession and consequently an undivided building, of which the judicial liquidation-distribution can be ordered.

6. If the relationship between the two ex-partners is disrupted, urgent and interim measures can be requested from the Family Court. This must be claimed within three months after the termination of the legal cohabitation. The judge determines the period of validity of the measures it imposes, without these being longer than one year (except when these measures relate to the children of the legal cohabitants). (However, in the meantime, a judgment has been intervened by the Constitutional Court 6.12.2018 stating that this limitation to 1 year violates the Articles 10 and 11 of the Constitution).

7. Termination of the marriage through divorce may result in the payment of a maintenance allowance. The protection is more limited for cohabitants. This expiry period of 3 months can play tricks on the ignorant in good faith, although legal cohabitants can provide their own arrangement in a cohabitation contract, that a civil-law notary can draw up. Such a copy can be purchased within our store of contracts.

In the case of divorce, there is a legal regulation for the division of assets that get mixed in practice.

However, capital shifts may also have occurred between ex-partners. They must then rely on legal concepts such as enrichment without cause, accession, unlawful act, negotiorum gestio, the lapse of the cause of a donation, the undue payment or the loan. This is extremely difficult. The Court of Appeal of Ghent (11th Chamber)[3] does state that a dissimilar contribution to the purchase does not automatically give rise to a claim, given the obligation to contribute, on the other hand that the affective relationship does not exclude the right to recuperation.

These sort of discussions can certainly be remedied in a cohabitation contract.

Another example of this concerns the donation between cohabitants. In contrast to the donation between spouses, which is always revocable, the donation between cohabitants is final and irrevocable. There is of course the possibility that the generous partner wishes to withdraw his donation if the relationship were to be terminated. If it can be clearly demonstrated that the determining cause for the donation was the continuation of the relationship, it can be argued that this determining cause has disappeared and, consequently ask forfeiture of the donation . However, it is also possible to make a donation under the resolutive condition of the donor's survival, for example 10 years, with regular renewal if the cohabitation continues (the so-called "temporary" donation).

8. The best solution to the problems that may arise as a result of the termination of legal cohabitation is to properly inform yourself and possibly request assistance from a notary or lawyer. After all, submission to a limited secondary matrimonial property regime is not mandatory law, which means that partners can deviate from the principle of separation of property and the presumption of undivided ownership. This is then recorded in a notarial cohabitation agreement that is listed in the population register. This contract only affects legal cohabiting partners. In principle, the cohabitation contract will not be conclusive with regard to third parties. The content of the cohabitation contract will not be included in the register and will therefore not be objectionable. Consequently, this publicity has the sole effect of establishing the existence of the agreement.

Nevertheless, this contract can certainly prove its worth during the termination of the legal cohabitation. After all, partners can include an arrangement regarding the termination of the cohabitation with good agreements and therefore with few conflicts.

[1] Court of Appeal Antwerp, 17.1.2018, TEP page 268; Antwerp, 7.3.2018, 290.

[2] TEP, 2018, p 277

[3]  Estate Planning, 2019 page 765; see also Gen (11De K, 9.5.2019, Estate Planning 2019, page 716 "Only a shift of capital that is separate from the normal contribution to the expenses of the cohabitation and increases at least the normal contribution obligation, can, depending on the circumstances, constitute a recoverable shift of capital without cause . "