After the reform of the Belgian inheritance law (the law of the 31st of July 2017[1]), the Belgian legislator tackled the issue of the Belgian matrimonial property regimes (the law of the 22nd of July 2018[2]). Both laws became effective on September 1, 2018. By doing so, the Belgian legislator modernized a whole area of civil law to better respond to the needs of today’s families.
Here are some of the important points of the matrimonial property regime’s reform:
1) Development of the separation of property regime: in this regime, each spouse maintains his/her own goods; there is no common estate (“common pot”)[3]. The legislator wished to remedy certain unfair situations, which can sometimes lead to inequalities where one spouse earns less than the other. The new law provides for the possibility (although not mandatory) to include in the marriage contract two new clauses which bring more solidarity between the spouses:
a) a acquests[4] participation clause: during their marriage, there is still no common estate, but at the end of their marriage, the acquests will be compensated between the spouses. This clause already existed before, but it is now codified in the civil code. Spouses can shape this clause as they wish. In the absence of a clear provision, the financially weak spouse will be able to claim half of the acquests.
b) a judicial correction in equity clause: spouses can provide that in case of unforeseen circumstances leading to an inequity (for example: if one of the spouses stopped working due to medical problems or stayed home to take care of the children), and in case their marriage should end by a divorce on the grounds of inconsolable differences, the financially weak spouse can ask for a financial compensation corresponding to a portion of the acquests (maximum one third of the acquests of the financially sound spouse).
2) Clarification of the legal Common Estate regime: in this regime, the acquets fall within the common estate. This regime applies to couples that marry without a marital contract. In the new law, the legislator clarifies which assets belong to each spouse (his/her private estate) and which assets are part of the common estate. Indeed, there was confusion about some asset such as professional goods, life insurances, companies’ shares, etc. prior to the enactment of this law.
3) The possibility to disinherit completely a spouse in case of remarriage: couples with stepfamilies are sometimes reluctant to marry, as they are concerned with preserving the rights of children from a previous union. Remarried couples can overcome this issue by inserting a “Valkeniers clause” in their marriage contract. This clause enables them to disinherit each other’s. The only limit of the previous law was the usufruct right of the surviving spouse’s claim over the family house. The new law goes one step further by providing that even this right can be denied. The new limit is the right of the surviving spouse to occupy the family home during a period of six months after the death.
Other innovations:
a) Stronger rights for couples without children: before the reform, the surviving spouse was sometimes obliged to share with some distant relatives the inheritance of his late spouse deceased without children left. He used to receive the full ownership of the common estate, but only a usufruct right over the private estate of his late spouse. The bare-ownership right over these assets was assigned to his relatives (parents, uncles/ants, nephews/nieces, etc.). Now the surviving spouse will receive a bigger portion of the inheritance of his late spouse. Furthermore, when the late spouse has no (grand)parents, siblings nor children left, the surviving spouse will inherit the total estate in full property.
b) Possibility to make sales between spouses: the ban on the sale of properties between spouses has finally been abolished.
c) New right for future spouses who wish to buy an immovable property: it is now possible for a couple not yet married whishing to buy an immovable property to state in the deed of purchase that this asset will be part of the future common estate if they marry one day. They will therefore have to go to the public notary only once.
[1] Law of the 31 of July 2017 amending the Civil Code regarding inheritance and gifts and amending diverse other dispositions in this matter, M.B., 1 of August 2017.
[2] Law of the 22 Of July 218 amending the Civil Code and diverse other dispositions regarding the law of the matrimonial regimes and amending the law of 31 of July 2017 amending the Civil Code regarding inheritance and gifts and amending diverse other dispositions in this matter, M.B., 27 of August 2018.
[3] Property that belongs to both spouses together.
[4] The acquests are the assets that each spouse has acquired during their marriage. It is the difference between the estate at the beginning of the marriage and the estate at the end of it.
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