Choosing or changing the matrimonial regime

Last update 19.12.2019

All married couples are subject to a compulsory matrimonial regime (marital property system). This is a set of rules governing the pecuniary interests of the spouses, the purpose of which is to regulate their property relations as well as their debts during the marriage and at its dissolution.

Spouses who have not concluded a marriage contract are subject to the matrimonial regime of community of property.

However, the spouses are free, before and during the marriage, to choose and change the matrimonial regime.

Who is concerned

All future spouses as well as actual spouses.

Prerequisites

The spouses may choose the marriage contract they wish, provided that their contract is not contrary to:

  • morality;
  • certain mandatory rules. For example: spouses could not, by marriage contract, change the legal order of succession.

Deadlines

Future and actual spouses can choose and change their matrimonial regime before and during the marriage.

Marriage contracts drawn up before marriage can only take effect on the day of the celebration of the marriage.

Costs

In the case of a marriage contract, the spouses must pay the notary's fees.

How to proceed

Characteristics of the different matrimonial regimes

The legal matrimonial regime: joint property of goods and assets acquired during the marriage

Future spouses who decide not to sign a particular marriage contract are automatically subject to the legal regime. This regime is founded on the principle of joint ownership restricted to property acquired during the marriage.

Under this regime, the assets that belong in common to both spouses are:

  • the proceeds accumulated as a result of their work: wages, salaries, fees, profits from a commercial activity, etc.;
  • income and revenues of property belonging to each spouse: rental payments received by one of the spouses who is the owner of an apartment rented to a third party, etc.;
  • Goods purchased by each spouse during their marriage. For example: a car purchased by one of the spouses is jointly owned, even though it may be registered in the name of the purchaser.
Note that any property that neither spouse can prove as belonging to them alone is considered as joint property.

The types of property that remains the (personal) property of one of the spouses are:

  • any property they owned before their wedding day. For example: a car, a house or furniture acquired before the marriage;
  • property acquired during the marriage but which are considered to be personal in nature and therefore the private property of one of the spouses. For example: personal clothing of each spouse, family souvenirs;
  • any property received by either spouse during the marriage by way of inheritance or donation unless the testator or donor stipulated otherwise. For example: a painting offered by a spouse’s parents as a birthday present, property inherited by a spouse from a deceased parent.

Debts held by either of the spouses prior to the marriage remain personal. However, creditors may collect on this debt not only in relation to the separate property of this spouse, but may also come after assets having become community property through the actions of this spouse (for example, the latter’s income).

Debts incurred by either of the spouses for the maintenance of the household or the education of the couple’s children may be recovered against the entirety of community property.

When a debt became community property through the action of only one of the spouses, it cannot be recovered against the separate property of the other spouse.

Universal community of property

In concluding their marriage contract, a couple can establish a universal community of property. This is the regime in which are considered common property:

  • all:
    • movable assets: jewellry, vehicles, etc.;
    • immovable assets: land, buildings, etc.;
    • assets existing on the day of the marriage contract;
    • assets acquired during the marriage: purchase, donation, inheritance;
  • debts, even debts incurred by one of the spouses before the marriage. For example: a bank loan taken out 10 years before the marriage.

Consequently, there is no property belonging to only one of the spouses except property that belongs by nature to one of the spouses (personal clothing, family heirlooms, etc.).

All debts incurred by either of the spouses are common and bind both spouses jointly and severally.

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

Under the regime of separation of property, in principle, there is no joint property between spouses. The goods and assets belong to either one or the other of the 2 spouses.

Each spouse therefore retains the sole benefit and right to dispose freely of their property, as well as sole responsibility for its management.

Similarly, each spouse is alone responsible for their debts, whether or not these debts were incurred before or during the marriage. An exception is made for debts incurred by either spouse for the maintenance of the household or the education of the children. Both spouses are always responsible for this type of debt.

The regime of separation of property applies in particular to:

  • couples in which one of the spouses pursues a professional activity exposing them to the risk of personal bankruptcy (e.g. individual entrepreneur);
  • spouses with very unequal incomes who do not want their income to be considered as community property.
Regardless of the matrimonial regime adopted, the tax authorities can collect on tax debts from either of the spouses.

Formalities for the adoption of a marriage contract or a subsequent change in the type of contract

Using a notary

Spouses who wish to draw up or modify a marriage contract must consult a notary. The notary:

  • drafts the marriage contract;
  • has the spouses/future spouses sign the marriage contract before him or her;
  • ensures the marriage contract is submitted to the Public Prosecutor's Office so that it can be transcribed in the civil register. This formality is essential in order to make the marriage contract binding on third parties (e.g. the creditors of either of the spouses).
Spouses who choose the legal regime of community of property do not have to go through any formalities.

Changing a marriage contract

Throughout their marriage, the spouses may adopt and/or change the matrimonial regime:

  • whenever they want: there is no waiting period before being able to adopt or change the matrimonial regime;
  • as many times they wish.

Thus, the day after the marriage, spouses who had chosen a certain form of marriage contract (legal community, universal community or separation of property) can establish or modify their marriage contract (e.g. separation of property, legal community or universal community).

Changing the matrimonial regime requires a document drawn up and authenticated by a notary.

Liquidation of the matrimonial regime

Marriage is dissolved by:

  • the death of one of the spouses; or
  • divorce.

In both cases, the matrimonial regime ends and must be liquidated.

Liquidation requires the division of community assets and liabilities. Sharing takes place, according to their respective rights, between:

  • the former spouses: in case of a divorce;
  • one of the spouses 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 are therefore, in principle, no assets to be liquidated.

However, it is possible that the spouses may have jointly acquired undivided property, that is, property owned by both spouses (indivision regime). For example, a house bought during the marriage by both spouses. Consequently, in the event of dissolution of the marriage, the indivision must be liquidated.

Comparative table

  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
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