Matrimonial property regimes

J.Steen, The marriage contract

Matrimonial property law

In a step-parental relationship: At the earliest six weeks before the death, the marriage contract can still be amended and the longest living partner would renounce her right of inheritance (the usufruct on the family home and the contents). In practice, this will only happen when the latter acquires either a sum of money or certain goods for ownership (often problems with remarriage with a significantly younger partner).

In the case of a separation of property contract, the spouses can also request that the family home could be allocated to him / her in function of family interests or for professional reasons or when the spouse is the victim of violence committed by the other spous.

Anyone who conceals information or makes false statements during the division after divorce may also be found guilty of civil handling and lose his share of these assets.

Enhanced professional autonomy. Each spouse must therefore spend his income as a priority on family expenses, but he may use the surplus to purchase professional goods. It is also provided that the professional equipment that is acquired does not fall within the community but belongs to the personal assets of the person concerned. This gives rise to compensation that corresponds to the value at the time of the dissolution of the system (ie not at the time of the distribution, which is normally the rule).

Within a marriage, they often work with companies. As long as the shares were created during the marriage, this does not pose a problem, as any increase in their value also falls within the community. However, if it concerns shares from before the marriage or which were given to one of the spouses, this could previously lead to distortions. For example, the spouse in question envisages that the profits would be reserved or capitalized in the company and that he / she would only grant himself / herself a minimal wage / compensation. The company is getting richer and its shares are growing in value. Now there is an arrangement whereby the same spouse must pay a compensation to the community, which corresponds to the net professional income that one could have received if the profession had not been exercised within a company. It is then up to the allegedly underpaid spouse to demonstrate motives such as business or cyclical reasons, economic or competitive reasons, or to absorb heavy losses or build up reserves for investments in order to remain competitive, etc.

With life insurance, a distinction is now made according to whether the insurance contract was concluded for the benefit of the co-spouse or for the benefit of himself (ie upon the death of the other spouse). In the latter case, a fee must be paid.

It is now also possible for an unmarried couple who purchases a real estate to have it stated in the deed of purchase that it is their wish to bring this real estate into the community when they would marry (avoid having a later deed of contribution to a marriage contract).

If they opt for a system of separation of property (and this refers to after 1 September 2018), more attention is now drawn than before to the corrective clauses that can be included in a contract of separation of property. After all, in a separation of property contract, each partner only disposes of the income that he himself obtains and the other spouse cannot claim it. In practice when love unites, shifts often occur and it is therefore recommended to include a set-off clause in which all possible assumptions can be foreseen (e.g. it is assumed that in the dissolution of the marriage everything is settled, or the settlement clause of acquisitions, see below). This used to exist, but the notary will now pay much more attention to this.

Professional assets are currently divided according to their value at the time of dissolution (not the time of division as before) when 1 spouse exercises the profession. The economic value of clientele falls in the community, except when it is fully linked to the person of a spouse (mem. van toel., Parl. St. Kamer 2017-18, no. 54-2848 / 001).

New is the regulation in art. 1469 § 2 of the Belgian Civil Code, which provides that the spouses who have included the settlement of acquisitions in the marriage contract are deemed to have a settlement made at the time of dissolution on the basis of the comparison between final capital and initial capital. For example: The husband marries and has € 10,000.00 and has a final capital of € 600,000.00 in the event of divorce (or death), so has an increase in capital of € 590,000.00. The wife commences with an initial capital of € 20,000.00 and has a final capital of € 200,000.00, so there is an increase in capital. of € 180,000.00. The difference between the two is € 410,000.00 (€ 590,000 - € 180,000) .. The man will then have to give up the difference or € 205,000 .

Also, when drawing up such a separation of property contract, the notary will be obliged to point out to the spouses the rule of fairness correction. This is therefore especially the case if, for example, due to external circumstances (for example illness or another family situation) the situation is considered to be much worse than anticipated. the spouse who is less fortuned can then be granted an allowance from the other spouse with a maximum of 1/3.

It must be explicitly abandoned