Belgium

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MARRIAGE

• Under the Belgian law the general effects of the marriage (régime primaire) includes rights and duties of economic and personal nature (Article 212 et seq. of the Civil Code). The primary regime applies irrespective of the matrimonial property regime and cannot be excluded by spouses. Spouses are obliged to assist each other and to contribute to the household expenses according to their ability (Articles 213 and 221 of the Civil Code). The law provides some restrictions concerning the conclusion of transactions (see Articles 215 and 224 of the Civil Code). E.g. the disposition of the family home requires the consent of both spouses (Article 215 § 1 of the Civil Code). Both spouses can exercise the tenancy rights, even if only one of them has concluded the tenancy contract on the family home (see Article 215 § 2 of the Civil Code). Debts entered into for some finalities (education and care of children; household) oblige both spouses (Article 222 of the Civil Code). Personal effects of the marriage (the fixation of a common residence, the reciprocal duty of fidelity, support and assistance) are regulated in Articles 213 et seq. of the Civil Code.

• The effects concerning the matrimonial property regime are called régime secondaire.

The default property regime under the Belgian law is the community of property acquired during the marriage (i.e. the community of acquests). Thus, the assets acquired after the conclusion of the marriage are commonly owned by the spouses (Article 1405 of the Civil Code). On the contrary, the assets owned prior to the marriage by each of them are part of the spouse’s separate property. Part of the latter are also some assets acquired during the marriage (the assets inherited or received by donation and some other assets listed in the Civil Code, as e.g. the ones of personal use) (personal assets are enumerated in Articles 1399 et seq. of the Civil Code). Normally, each spouse is free to manage and dispose of his or her own property (some restrictions are foreseen, e.g. for the disposition of the dwelling house, which requires the consent of both spouses: see above). Regarding the common property, the concurring management applies. However, there’re also some acts, which require the consent of both spouses (acts requiring the joint administration are listed in Articles 1417 et seq. of the Civil Code). The debts that each spouse got into prior to the marriage, the ones arising from an inheritance or a gift also during the marriage (as well as some other debts listed by law: see Articles 1406 et seq. of the Civil Code) are to be considered personal debts of each spouse. A (non-exhaustive) list of common debts, which can be recovered from separate and common property of the spouses, is provided by law.

A marriage contract may be concluded in order to choose a different property regime or to modify the statutory one within some limits (see Articles 1392 et seq. of the Civil Code). Pre- and postnuptial agreements are allowed. Other matrimonial property regimes, different than the statutory one, are: the separation of property (Articles 1466 et seq. of the Civil Code) and the universal community of property (Articles 1454 et seq. of the Civil Code) The regime of separation of property was recently developed by the Belgian legislator. Thus, if the spouses included a specific clause in their marriage contract, the assets acquired during the marriage are going to be compensated at its end. Furthermore, the spouses may recognize to the (financially) weaker of them the right to claim for a compensation of the acquests if some circumstances arise.

• In case of divorce the matrimonial property regime is dissolved (see Article 1427 of the Civil Code). The division of the property follows according to the rules provided by the law. However, spouses may deviate from the consequences deriving from the application of the legal rules.

If the spouses lived under the matrimonial property regime of separation of property and they recognized the possibility of a compensation, this one takes place, when the property regime ends.

• The consequences of the separation are similar to those of the divorce.

However, as the separation does not dissolve the marriage, the reciprocal duties of maintenance, fidelity and care continue to exist (in a partially different form). Nevertheless, spouses are allowed to live separately. The separation of property applies.

• In the event of the death of the spouse, the situation differs in case of testate and intestate succession.

If one spouse dies testate, the other one has a right to a reserved share of the estate: he or she inherits at least half of the estate in usufruct and his or her reserve must include the usufruct of the dwelling house and its furniture (Article 915 bis of the Civil Code).

If the spouse dies intestate, the surviving one becomes his heir. By lack of a disposition mortis causa, he gets the usufruct of the entire estate if there are children; the usufruct and, in addition, the full ownership of deceased’s part of the common assets, if there’re no children, but only other heirs; the full ownership of the entire estate, if there’re no other heirs (Article 745 bis of the Civil Code).

 

LEGAL COHABITATION

• The general effects of the legal cohabitation are similar to those of the régime primaire. However, only property rights and obligations (and no personal duties) arise from the legal cohabitation (Article 1477 of the Civil Code). Cohabitants live under the property regime of separation of property. They can provide otherwise through an agreement (Article 1478 of the Civil Code).

• In the event of the death of the legal cohabitant, the surviving one gets an usufructuary (or a tenancy) right on the house of the spouses’ common residence as well as a usufruct on its furniture. However, this right can be limited or suppressed by a Will.

 

DE FACTO COHABITATION

There is no general regulation of the de facto cohabitation’s property effects under the Belgian law. On the contrary, there are only some dispositions (not only in the field of the private law), which applies to non-registered and non-married partners. General rules in the field of property law and law of obligation also apply. Partners may conclude an agreement in order to regulate their relations.

Based on the national report prepared by Maria Virginia Maccari & Tereza Pertot