Mariage and cohabit
J.Steen, T he marriage
Marriage
To be able to marry one must meet the legal conditions. You and your partner must both be of legal age and must give a valid consent.
1.Spouses have marital duties, namely the duty of faithfulness, the duty of cohabitation, the duty of mutual help (financially) and finally the duty to assist each other in both good and bad times. There is a suspicion that the husband is the father of the children born out of the marriage. The parents can give both their family names to the children (in case of disagreement it will be the family name of the father).
2. Regarding the property regime, the legislator makes a distinction between:
- The legal system (everything one earns during the marriage is communal; but also what one acquires with this income is communal, even if the property (e.g. a car) is only on the name of 1 of the spouses, the debts incurred during the marriage are in rule common),
- The separation of the property regime (income and debts remain specific to each spouse),
- and the community of property system.
3.The legislator also regulates the rules of management (sale, rental, donation, etc.). Usually each spouse can act alone, for important ones both must act (e.g. donate, buy real estate).
4. In the event of conflicts between the spouses, provisional measures can be requested through the Family Court (since 2014 - formerly justice of the peace), such as taking additional measures concerning property, or annulment of deeds (eg donation by one of the spouses).
To put an end to marriage, one must divorce. This can be done by mutual agreement or because of irreparable disruption. Everything is strictly regulated by law.
5. In the event of the death of a partner, the surviving spouse has a law of succession that differs depending on whether there are children or not and depending on the chosen marital regime.
This is usually (if the legal system applies and there are children) the usufruct on the personal property of the deceased.
The surviving spouse is also entitled to a reserve share. As a rule, the surviving spouse cannot be disinherited (unless divorce proceedings have been initiated or a de facto separation of more than 6 months). This person has a minimum right to usufruct on ½ of the estate and in any case and including the usufruct on the marital residence and the furniture.
There is an exemption from inheritance tax when inheriting the family home. For the other goods a progressive rate of 3 % to 27% is applicable.
Legal cohabitation
Eduard Manet: Chez le père Lathuille
6.To start cohabiting legally, you only need to make a statement to the civil registrar. The admission conditions are the same as for marriage, with the important difference that there is no prohibition on incest. You can therefore legally cohabit with your mother, father, sister, etc.
In legal cohabitation, the autonomy of the partners takes precedence over family interests. Consequently, you do not even have to live together or be loyal to your partner. The father must acknowledge the child. When the parentage of both parents is established at the same time, the parents can give both their names to the child (or in case of disagreement the name of the father).
If the acknowledgment or descent by 1 of the parent is done later, the child will retain the name of the first parent (GwH 6.6.2019 5AGB 2019/14, page 1213, confirms that this regulation is not unconstitutional).
7. The property situation of legal cohabiting partners is one of separation of property. It is therefore a matter of proving which goods belong to you and which are the property of your (ex-) partner. If no evidence is available, the goods are indivisum between you and your (ex-) partner. However, contracts can be drawn up in order to work out a regulation on these assets. This must be done by notarial deed, and each notary has a basic text for this.
When there are no contracts, claims can be made on a shift of assets without cause. Attention, the Court of Cassation[1] has recently hardened its position by stating that there is a cause when the "impoverishment" is caused by the promotion of the self-interest of the impoverished. Once accepted, it is viewed as a debt in value, so compensation must be determined by value at the time of distribution (the "discounted value")[2].
8. If the relationship between you and your legal cohabitant is seriously disrupted, the Family Court can also impose measures here. In addition, keep in mind that in case of termination of legal cohabitation, these measures are only provisional.
Moreover, the cohabitation can be terminated by any partner at any time by simply making a statement to the civil registrar. You can then still request measures from the Family Court within a period of 3 months after the date of termination, after which it will no longer be admissible. In some cases, the Court can still grant maintenance money for one year. The Constitutional Court has recently (4) declared this restriction unconstitutional.[3]
9. In the past, there was no inheritance law for cohabiting partners, which could lead to problems, e.g. at a certain point if it was decided to jointly purchase a property and there were already children from a previous marriage. The children from the previous marriage inherited the house in case of death and could therefore sell the house and evict the new stepmom. The legal concept of “tontine” or “accrual clause” was often invoked, whereby the surviving partner could then acquire the property upon death.
In the meantime, the legislator has intervened. As a legal cohabitant you are entitled to usufruct of the family home and the household goods present there. If there are children, they cannot request the conversion of the usufruct, unless a testament of the testator provides for this. [4]
The legal cohabitant can also benefit from the favorable rate of 3 to 27% (so progressive depending on the value) as inheritance tax on the death of the partner. This is not unimportant, as a will can be made and the partner can be designated as a general legatee.
After 3 years of legal cohabitation, an exemption from tax also applies to the family home.
William Dyce, The meeting between Rachel and Jacob
De facto cohabitation
10. De facto cohabitation is an informal form of cohabitation that is not recognized by the legislator. The consequence of this is a great lack of protective rules for the partners (with the exception of the common children and the tax system).
Likewise, there are no inheritance rights for the actual cohabitants. Consequently, they will have to favor each other in their will. With the joint purchase of real estate, a clause of accretion or tontine[5] can possibly be provided.
11. In case of problems concerning the children (and maintenance money to be paid for them), the Family Court can be addressed.
For the rest, nothing is arranged and no obligations exist between the parties. When one partner has invested in the property of the other partner, it can give rise to problems, in the sense that it will very rarely give rise to any compensation when the parties separate.
It is therefore certainly advisable to put a few things down on paper. Our office makes some contracts available for a fee (see website Contracts).
12. In tax terms, a favorable rate also applies in the event of death (3% to 27%), provided that there is a joint household and the parties have lived together for at least 1 year. In the meantime, cohabitants in fact are also exempt from inheritance tax with regard to the family home (through a will) if they have lived together for at least 3 years.
Everything is not exactly regulated, which is why case law can be divided. An example: most courts apply property law to pets. Who eg. has bought a dog, can then take the dog with him, even if the partner has meanwhile formed a strong affective bond with him. The Court of Appeal Antwerp (29.4.2019, NJW, 2019, no 408, 659) did grant a right of access, and ruled independently of the right of ownership "Judging otherwise would reduce animals to mere (consumer) objects or can no longer be justified today ". The Court spoke of a quasi-good.
If you would like more information about family law or cohabitation, be sure to read the following articles:
Termination of cohabitation
[1] HvC 12.1.2018, RW. 2018-19, p. 1663 (here was the will of the impoverished to give a fresh start to the relationship by purchasing a house, seen as an act in the personal interest of the congregation
[2] HvB Ghent, 11° Chamber, 4.2.201,p. 1146
[3] Constitutional Court 6.12.2018 with regard to Article 1479, 3rd paragraph BW, judgment no 177/2018
[4] see note Ghent, 11k, 23.5.2019, RABG, 2020/4, p. 307
[5] In general, these clauses are agreements whereby persons jointly acquire certain goods and whereby the survivor will eventually become owner of some or all of the goods. Both parties must have equal opportunities to obtain the good in the end.