One of the other big life events in which the Notary can help support you is that of committing yourself to life with another person. That commitment once took the form of traditional marriage, which is still very prevalent in today’s society. However, other forms of living together have gradually emerged and are increasingly widespread. One such is statutory cohabitation in Belgium.
1. Marriage
Marriage is the traditional institution for union, and that with the most legal consequences once it is entered into.
Firstly, marriage gives rise to personal obligations between the spouses, chiefly maintenance obligations. These mainly consist in the duty of succour giving rise to the obligation for the spouses during and even on dissolution of the marriage to share the same standard of living.
Marriage also has property consequences for husband and wife. The law imposes a “primary regime” on the spouses, which includes the obligation to contribute to the expenses of the marriage in proportion to their respective abilities, and joint and several liability for household debts. This latter obligation means that if one spouse contracts a debt exclusively for the needs of the household (buying a fridge, a washing machine or a family car), it would also be a charge on the other spouse’s estate. The primary regime also protects the main family home by preventing one spouse from disposing of it without the other’s consent.
The primary regime applies regardless of the matrimonial property arrangements between the spouses. Alongside the primary regime is an ancillary “secondary” regime which is that chosen by the spouses in their prenuptial agreement, or if they do not make one, the statutory regime of community of property.
A couple who are married by a Registry Officer without having entered into a prenuptial agreement will be subject to the statutory regime of community of property. Opting for this regime will result in a body of “community property” being created alongside each spouse’s own property. This community property will include the spouses’ incomes and all property acquired during their marriage which cannot be proven to be the wholly-owned property of one of the spouses.
The spouses may also decide to enter into a prenuptial agreement, executed before a Notary, in which they opt for a particular matrimonial property regime. They can for example opt for the regime of community property supplemented by specific clauses such as an inventory of their respective separate property for example, so that there is no question about the matter afterwards. But they may also opt for a completely different system – the regime of separate property. Spouses who opt for separation of property decide to keep two separate estates during their marriage and even on its dissolution by divorce or death. They will then have exclusive powers to administer their own property and the other spouse cannot under any circumstances interfere with it other than in very specific exceptional circumstances.
This regime of separate property can also be adapted to the couple’s situation so as to adopt the regime of separate property with community of after-acquired property or sharing of after-acquired property. The Notary will help the intended spouses to devise the different possible terms according to their specific situation.
But marriage also determines the consequences for inheritance. When one spouse dies, the surviving spouse has what are known as statutorily “reserved” rights of succession, i.e., ones they cannot be disinherited from. These comprise a life interest in half of the estate, and a life interest in the main family home.
Unless the deceased had made other arrangements (e.g., by will), the surviving spouse will also be entitled to a life interest in the whole estate if his/her predeceased spouse had lineal descendants. If he/she did not but did have other heirs (e.g., siblings, parents, etc.) and they were married under the statutory rules, the surviving spouse will acquire absolute ownership of the predeceased spouse’s share of community property and a life interest in the predeceased spouse’s separate estate. Finally, if the predeceased spouse left no heirs at all, the surviving spouse will be entitled to absolute ownership of the entire estate.
Prenuptial agreements are not set in stone. The spouses can make changes to their matrimonial property regime during their lifetime either for tax purposes or to safeguard their property from children (especially stepchildren…). The Notary will help them find the right solution.
2. Statutory cohabitation
Statutory cohabitation appeared in 1998 and has been increasingly developed by the legislature. It has acquired general acceptance and is becoming increasingly common. Unlike marriage, however, statutory cohabitation has no effect on the individual’s civil law status. Nor is any special public ceremony involved; it is brought into being by a simple declaration made by both parties before their local authority’s Registry Officer.
There are, however, some significant consequences, although fewer than for marriage. Articles 215 (protection of the family home), 221 (contribution to the expenses of shared life) and 222 (joint and several liability for the debts of shared life and the children’s upbringing) all apply to statutory cohabitation. There is, therefore, a sort of “mini primary regime” for statutory cohabitees.
Where property matters are concerned, statutory cohabitees will be deemed to have separate property, i.e., each will keep their own personal estate.
However, before or after making their declaration of statutory cohabitation before the Registry Officer, they may enter into a “statutory cohabitation agreement”, executed before a Notary, in which they agree to a range of personal or property consequences which they wish to see operative during their shared life as statutory cohabitees.
Where succession is concerned, a surviving statutory cohabitee has significantly fewer rights than a married spouse. They will be entitled only to the life interest in the shared family home (or the right to the lease on the family home if they were tenants). They will be entitled to more only if their partner had made a will or gifts in their favour before death. Also, there is no statutorily reserved right in the estate, so a statutory cohabitee can be disinherited by will.
Statutory cohabitation is terminated by ordinary declaration made by either statutory cohabitee to the local authority, and the statutory cohabitation agreement will then be considered to have lapsed ipso facto. It will also be automatically terminated if one cohabitee marries the other cohabitee or someone else.