08/2018: NEW MARITAL PROPERTY LAW IN FORCE

Since 1 September 2018 not only the inheritance law, but also some fundamental points of the marital property law have changed. We list some of the most important changes for you.

** The ban on sales agreements between spouses has been abolished.

** The regime of separation of assets with community of accrued gains, better known as the “statutory regime” has been fundamentally revised.

     The following provision has been added to the law:

“a spouse, who exercises his/her profession within a firm of which the shares belong to him/her, is liable to pay the community of property compensation for the net professional income that the community of property has not received and could reasonably have received if the profession had not been exercised within a partnership”.

For “personal” activities carried out within a partnership, such as medical professions or management firms it seems clear that this usually refers to all profits of said partnership. For other firms one can assume that it refers to a normal salary in line with the market and not to all the profits from the firm. At the moment, however, it is not clear to us whether the assets that have been accrued thus far during the marriage would also come under this compensation rule. This intervention could therefore result in assets that one presumed to be completely personal suddenly generating a claim for compensation to the community of assets. From now on, in any case, we will have to take this compensation rule into account under the statutory regime when starting a firm in the form of a partnership with one’s “own” money.

** A new marital regime has been drawn up: separation of property with settlement of acquisitions.

As with the pure separation of property regime, everything that the partners earn during the marriage remains their own property. That means that a spouse who is not involved in the business enjoys complete protection from creditors. The disadvantage of this regime, however, is that a partner who has little or no income accrues nothing during the marriage. Under this new regime any assets remain separate, but in the event of divorce or death, the gains can be settled so that the ‘non-active’ spouse also benefits from the accrued assets. This settlement can be completely customised. As a result, spouses can opt for more mutual solidarity without losing the benefits of separation of property (protection of family property, for example, or protection against creditors).

 ** Fairness clause.

The reform also provides that the notary must foresee a mandatory clause concerning a “correction for fairness” in marriage contracts that fall under the separation of property regime. One can either include the correction for fairness or explicitly exclude it. In the event of a divorce, the correction for fairness allows a judge, under specific circumstances whereby the division of assets to the partner with the least assets can be considered to be ‘unfair’, to attribute a right to compensation of maximum 1/3 of the assets accrued during the marriage.

** On the death of their partner, spouses without children inherit in full ownership not only the usufruct of the entire estate and the marital community but, from now on, all the property that was held in undivided ownership (real estate, cash investments, etc) as well.

The above examples are only some of the most important changes. Please do not hesitate to contact us for more details or to look at the impact these changes might have for your particular situation.


 

Ann Westen

About Ann Westen

Ann specialises in succession planning. She is also regularly invited to speak at events and seminars. Do you have questions? Contact Ann by email: ann.westen@bofidi.com