Couples in Belgium

Couples in Belgium

Couples in Belgium

1. Which law applies?

1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

For marriages concluded until 28 January 2019, Belgian national rules apply. If the spouses did not make a choice of law, the matrimonial property is governed by the law of the State on whose territory both spouses, after solemnisation of the marriage, established their first habitual place of residence. If the spouses do not have a common place of residence in the same State, the applicable law is that of the State of which both spouses had the nationality upon the solemnisation of the marriage. In the other cases, the applicable law is that of the State on whose territory the marriage was solemnised. (Art. 51 Code of Private International Law, hereinafter Code D.I.P.). There are no international conventions that have to be respected with regard to specific countries.

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.
  • The spouses’ first common habitual residence after the conclusion of the marriage.
  • Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
  • Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.

By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

Until 28 January 2019, the spouses had the possibility of choosing the applicable law and could designate one of the following legal regimes: (i) the law of the State on whose territory they, after the solemnisation of the marriage, establish their first habitual place of residence; (ii) the law of the State on whose territory one of them, at the time of the choice, has his/her habitual place of residence; (iii) the law of the State of which one of them has the nationality at the time of the choice (Art. 49 Code D.I.P.). The choice must be established in writing, dated and signed by both parties (Art. 52, para. 1 in fine Code D.I.P.). As a rule it applies that the choice has only prospective effects, but the spouses can also decide otherwise – as long as this does not adversely affect third parties’ rights (Art. 50, para. 3 Code D.I.P.).

Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23. In Belgium, the choice of law has to be drafted by the notary in the form of an authentic act (Art. 2.3.6 Civil Code, hereinafter CC).

Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.