COMMUNITY OF PROPERTY AND THE DIVISION OF MARITAL PROPERTY
Marriages concluded before 1 January 2018
Anyone who got married before 1 January 2018 and has not had a marriage settlement drafted (by notarial deed at a civil-law notary’s office) is married in community of property. Briefly put, all property from before and during the marriage will be joint property and only an inheritance or gifts with an exclusion clause will remain outside the community of property. It means that both spouses are liable for debts that are incurred and also existing debts from before the marriage become joint debts. Property is not easily attached, as the saying goes. Only strictly personal payments, such as a compensation payment for a personal injury, for instance, are deemed to be attached more easily and need not be divided.
Property originating from the family of one of the spouses may be taken out of the community by that spouse by paying half of their estimated value.
Marriages concluded after 1 January 2018
A limited community of property is the underlying principle for people marrying after 1 January 2018. Briefly put, it means that the property and the existing debts from before the marriage, will not become joint property or debts. This applies to things/matters like an inheritance, but also a student loan. Gifts and inheritances acquired during the marriage also stay outside the community of property. If a good/property, a house for instance, was already owned by both spouses before the marriage, it belongs to the matrimonial property, notwithstanding any conditions of ownership. Debts of one of the spouses incurred during the marriage come within joint liability. If this is not what the spouses want, they need to make a prenuptial agreement at a civil-law notary’s firm. Any party in a divorce arguing that certain property is personal property, needs to prove this. If this fails, that property is considered to belong to the joint property that does need to be divided. For those people marrying after 1 January 2018, it has become as important as ever to keep good records: which property and which debts are there at the moment the marriage is solemnized? This does not have to be recorded at a civil-law notary’s office or a law firm, but it would be wise. How else can anyone prove what was his or her property in case of a possible divorce? During the marriage, too, it is important to keep a record, because sometimes assets from one of the private assets of the spouses may flow in the matrimonial property or vice versa.
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