What happens if I marry my partner without a prenup?
Despite the decline in the number of marriages among younger people, the institution of marriage remains one of the most powerful symbols to shape a partner relationship. What people may not think about as often when they get married is that it can also have far-reaching consequences in terms of assets; wanted or not. In this article, the family law specialists of Bannister Advocaten explain in general terms what the consequences are for the spouses' assets if they have not drawn up a prenuptial agreement and what the advantages of a prenuptial agreement can be.
What is a matrimonial system?
Marriage contract or not, getting married always entails a so-called matrimonial property regime. A matrimonial property regime implies that certain property consequences are thus aligned on the occasion of the marriage, either determined between the spouses themselves, or through a legal system drawn up by the legislature.
If you marry without a prenup
Belgian law is based on a system whereby a standard legal matrimonial property regime applies to spouses, insofar as no marriage contract has been drawn up. These rules then apply from the moment the marriage is concluded.
As of the consummation of the marriage, as a result of this legal system, in terms of assets there is three capacities in total, namely the two separate assets of the spouses themselves and one common asset of the spouses together. The law has shaped it this way, to ensure that there is a balance between autonomy and solidarity of the spouses.
The spouses' own assets include, on the one hand, property that each of the spouses already owned separately prior to the marriage. Think of a car or house that one of the spouses had already bought with their own funds prior to the marriage. On the other hand, equity also includes property acquired during the marriage through gifts or inheritances.
Common property, on the other hand, includes the property that the spouses purchased together during the marriage. A very important point is that all income obtained by the spouses during the marriage is also included in the joint estate. This includes not only income from all types of professional activities, but also income from the spouses' own property. For the latter, consider, for example, rental income arising from one of the spouses' own home.
The rule of thumb generally used to determine whether an asset belongs to one's own estate or to the common estate is the so-called presumption of commonality. All assets that cannot be proven to be the property of either spouse are common.
What are the benefits of a prenup?
In some cases, however, spouses may not agree with the standard arrangement imposed by the law. For example, spouses may consider that they do not want to create community between them at all or just want more solidarity. In this sense, it is perfectly possible to deviate from the above system by means of a marriage contract.
A great added value of the prenuptial agreement is that you can adapt the rules of marital property to your own preferences and wishes as a married couple. For example, you may decide to establish a system of separation of assets, where there are only two separate assets and each spouse continues to receive his or her own income. The rationale behind this sometimes is to protect the other spouse in the situation where one spouse has his or her own business. This way, it can be avoided that the other spouse could possibly be sued in case of mounting debts in the business in question. The system of separation of assets is also often chosen in newly formed families.
On the other hand, a couple can also value solidarity very highly. Then, for example, they can decide to work with a general community of property, where all the goods are contributed to the common property.
Finally, the above schemes can also be softened with various clauses to make the marriage contract fully conform to the couple's wishes.
Would you like further information on the different marriage regimes or would you like help drafting your marriage contract? Then feel free to contact our family law experts at info@bannister.be or via 03/369.28.00. Our team is always ready to help you further.
