Matrimonial regimes
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Summary:
All married couples are subject to a compulsory matrimonial regime (marital property system). You have the option to choose and/or change it before and during your wedding.
All married couples are subject to a compulsory matrimonial regime (marital property system). This is a set of rules that:
- governs your financial interests; and
- determines the distribution of your assets and liabilities during the marriage and upon its dissolution.
If you have not signed a marriage contract, you are automatically subject to the community of property regime.
However, you are free to choose and/or change your matrimonial property regime before and during your marriage.
Who is concerned
All future spouses as well as current spouses.
Prerequisites
You can choose any marriage contract you wish, provided that your contract does not conflict with:
- public decency;
- certain mandatory rules (e.g.: you cannot change the legal order of succession through a marriage contract).
Deadlines
You can choose and/or change your matrimonial regime before or during your marriage.
If you have drawn up a marriage contract before your wedding, it can only take effect on the day of your wedding ceremony.
Costs
In the case of a marriage contract, you are responsible for the notary fees.
How to proceed
- Statutory matrimonial regime
- Special matrimonial regimes
The community of assets acquired during marriage, also known as statutory community or community of property, is the statutory matrimonial regime.
If you decide not to sign a marriage contract, then you are automatically subject to this legal regime.
Under this regime, certain assets:
- are shared:
- the products of your labour: salaries, fees or profits from commercial activities, etc.;
- the proceeds and income from your own property: rent received from renting one of the spouses' apartments, etc.;
- goods purchased by one of the spouses during the marriage: your car, even though it is registered in the name of a single purchaser, etc.;
- are personal (belonging) to one of the spouses:
- any assets that belonged to one of the spouses prior to the marriage: a car, house or furniture acquired before the marriage, etc.;
- assets acquired during your marriage but which are considered, by their nature, to be personal assets: personal clothing, family heirlooms, etc.
- any assets that either of the spouses received by inheritance or gift during the marriage, unless the testator or donor stipulated otherwise (e.g. a painting given as a birthday present to one of the spouses, property inherited by one of the spouses, etc.).
Any assets that neither of the spouses can prove belong to them personally are considered common property.
Any debt:
- incurred by one of the spouses before the marriage remains personal. However, creditors may continue to pursue payment of these debts:
- against the personal assets of the debtor; and
- against assets that have entered into the community on their behalf (e.g. on their income);
- incurred by one of the spouses for household maintenance or the children's education may be recovered from the joint assets;
- incurred by one of the spouses individually cannot be enforced against the separate property of the other spouse.
Universal community of property regime
You can establish a universal community of property through a marriage contract. In this case:
- all of your assets are common:
- moveable assets: jewelry, cars, etc.;
- real estate: land, houses, etc.;
- any assets present on the date of the marriage contract;
- any assets acquired during the marriage: purchases, gifts, inheritances;
- all your debts are shared, even those incurred by only one of the spouses before the marriage (e.g. a bank loan taken out 10 years before the marriage and still running during the marriage). Thus, you are jointly and severally liable for any debts.
Consequently, there are no assets belonging to only one of you, except those that belong to you by virtue of their nature (personal clothing, family heirlooms, etc.).
This regime is intended in particular for couples who are willing to share all of their income, even if they earn unequal incomes.
Separation of property regime
In a separation of property regime, there are, in principle, no common assets. All property is divided and can only belong to one of the spouses.
Each person retains sole control over:
- the management; and
- the use; and
- the free disposal of their personal property.
Similarly, each person remains solely liable for their debts, regardless of whether they were incurred:
- before the marriage: or
- during the marriage.
There is an exception for debts incurred by one of the spouses for:
- household maintenance; or
- children's education.
This is because both spouses are always jointly and severally liable for these debts.
The separation of property regime is particularly suitable for couples where:
- one of the spouses carries on an activity that exposes them to the risk of personal bankruptcy (e.g. sole trader);
- the two spouses have very unequal incomes and do not wish these incomes to be held in common.
Regardless of the matrimonial regime adopted, the tax authorities can collect on tax debts from either of the spouses.
Marriage contract
Consultation of a notary
You must use a notary if you wish to:
- draw up; or
- modify a marriage contract.
The notary:
- draws up the marriage contract; and
- has you sign the marriage contract in his presence; and
- forwards the marriage contract to the Prosecutor General's Office so that it can be entered in the civil register. This formality is essential in order to make the marriage contract enforceable against third parties (e.g. the creditors of one of the spouses, who are then obliged to comply with this contract).
If you choose the statutory community of property regime, you do not need to complete any formalities.
Changing a marriage contract
Throughout your marriage, you can adopt a specific matrimonial regime or change your matrimonial regime:
- whenever you wish, as there is no waiting period;
- as many times as you wish.
Therefore, if you have chosen a type of matrimonial regime, you can, on the day after your wedding:
- draw up a marriage contract; or
- modify your marriage contract.
Changing the matrimonial regime requires a document drawn up and authenticated by a notary.
Liquidation of the matrimonial regime
Your marriage is dissolved by:
- the death of one of the spouses; or
- divorce.
In both cases, the matrimonial regime ends and must be settled.
The settlement takes place through the division of the assets and liabilities that make up the community.
The sharing is carried out, according to your respective rights, between:
- you and your ex-spouse, in the event of divorce; or
- the surviving spouse and the heirs of the other spouse, in the event of the death of one of the spouses.
Under the regime of separation of property, no property is common. There is therefore, in principle, no property to be settled.
However, it is possible that you have acquired 'undivided' property together (joint ownership regime), i.e. property that you both own (e.g. a house jointly purchased during your marriage). Therefore, in the event of dissolution of the marriage, the joint ownership must be settled.
| Types of property and debts | Legal regime | Separation of property | Universal community of property |
|---|---|---|---|
| Property owned prior to the marriage | Separate property | Separate property | Joint property |
| Property received as a gift or inheritance during the marriage | Separate property | Separate property | Joint property |
| Proceeds accumulated as a result of employment | Joint property | Separate property | Joint property |
| Fruits and revenues of property belonging to each spouse | Joint property | Separate property | Joint property |
| Debts incurred before the marriage | Own debts | Own debts | Common debts |
| Debts incurred after the marriage | Common debts | Own debts | Common debts |
| Debts incurred for the maintenance of the household and the education of children | Common debts | Common debts | Common debts |
