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.

2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

Spouses who have not concluded a marriage contract are, as of the day of their civil marriage, subject to the statutory regime, which is one of community only of the property acquired after the marriage has begun. This regime divides the assets of the spouses into three estates: the two separate estates of the spouses with all of the assets that they owned prior to the marriage and all assets acquired via an inheritance or via a gift during the marriage, or the assets that come in replacement of these assets (Art. 2.3.17-2.3.21 Civil Code). Certain assets or rights are separate regardless of the time of acquisition: this includes e.g. the accessories of each spouse´s own immovable property, clothing and objects for personal use, right to a pension, etc. (for a complete list see Art 2.3.18 and 2.3.19 CC). The common property consists of all earnings, both the professional income and the earnings from each spouse´s own assets, as well as the assets acquired for valuable consideration during the marriage (Art. 2.3.22 CC).

2.2. Are there legal assumptions concerning the attribution of property?

All assets of which it cannot be proven that they are the property of one of the spouses shall be regarded as common (Art. 1405 CC).

2.3. Should the spouses establish an inventory of assets? If so, when and how?

Spouses can include a list of assets in the marriage contract. This list applies between the spouses until proof of the contrary, but cannot be invoked against third parties. In some cases a change in the marital property regime requires a prior inventory drafted by a notary.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

Each of the spouses can dispose of his/her own assets (Art. 2.3.39 CC), with the exception of the family home, which may never be sold, donated or encumbered by a mortgage by just one of the spouses, without the consent of the other spouse (Art. 215, para. 1 old CC). The common property must be administered in the interest of the family. As a general rule it applies that either of the spouses can administer the common property. For example, the day-to-day actions (e.g. actions relating to the housekeeping and the upbringing of the children) can be taken separately by the spouses. In certain cases, exclusive administration by only one of the spouses is possible (e.g. when one of the spouses exercises an independent profession - Art. 2.3.31 CC). For other matters of greater importance such as entering into a mortgage loan or the sale of immovable property, both spouses must act jointly (Art. 2.3.32 and 2.3.33 CC). If the consent of a spouse is absent, the legal act can be declared invalid. (Art. 2.3.36 and 2.3.37 CC).

2.5. Are any legal transactions made by one spouse also binding on the other?

For those parts of the property a spouse can administer alone, the other spouse is bound to respect the action (Art. 2.3.30 CC). If the spouses have to act jointly, consent of the other spouse is necessary (Art. 2.3.32 CC). In case this consent is not given, the spouse who did not consent can in certain cases and within a certain time limit, request a declaration of invalidity.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Debts from before the marriage and the debts deriving from inheritances and gifts received during the marriage are separate (Art. 2.3.23 CC). In addition, inter alia debts entered into by one of the spouses in the exclusive interest of his/her own estate are also separate (for a complete list see Art. 2.3.24 CC). Common are e.g. the debts entered into by one of the spouses for the purposes of housekeeping and raising the children (for a complete list see Art. 2.3.25 CC).

As a general rule, each spouse is liable for his/her own debts with his/her own estate (Art. 2.3.26 par. 1 CC). Certain exceptions to this general rule apply (Art. 2.3.26 par. 2-4 CC). In the event that it concerns a debt entered into by both spouses, it can be recovered both from the separate estate of each of the spouses and from the common property (Art. 2.3.27 CC). Also a common debt can be recovered both from the separate estate of each of the spouses and from the common property, albeit with certain exceptions (Art. 2.3.28 CC).

3.1. Which provisions can be modified by agreement and which cannot? Which matrimonial property regimes may be chosen?

The spouses have the possibility of choosing a matrimonial property regime via a marriage contract. As alternative forms of matrimonial property regime, Belgian law provides the separation of property and the universal community of property. In addition, the spouses dispose of the possibility of regulating their matrimonial property regime at their discretion, in so far as they do not stipulate anything that conflicts with compulsory law, public order or good morals or the default regime (Art. 2.3.1 Civil Code (CC).

The separation of property regime (Art. 2.3.61-2.3.77 CC) knows only two estates: the estate of the one spouse and the estate of the other spouse. The income of each of the spouses remains separate, which means that they can each freely dispose of their earnings. Nevertheless, this does not mean that spouses who opted for separation of property cannot own anything jointly. However, the assets which they dispose of jointly are not "common", but rather "undivided". This means that the rules of the general law concerning co-ownership apply (Art. 2.3.68 CC). The specific status of the family home is also recognised in this regime. Spouses can opt for a separation of property, but they can also add certain clauses that ‘correct’ this separation by way of a certain form of solidarity. Additionally the spouses have to explicitly express whether they do or do not want the judicial authorities to apply an equitable adjustment in case of a divorce as a consequence of the irretrievable breakdown of marital life.

In the universal community of property regime (Art. 2.3.54 CC) there is virtually only one common property. Regardless of how the assets were acquired, they will always belong to the two spouses jointly.

3.2. What are the formal requirements and who should I contact?

The marriage contract is a solemn contract. All marriage contracts drawn up before or during the marriage and amendments (modification of the matrimonial regime or change to another regime) to the stipulated or statutory matrimonial property regime must be established by authentic instrument (Art. 2.3.6 CC).

3.3. When may the contract be concluded and when does it come into effect?

A marriage contract concluded before the solemnisation of the marriage enters into effect as of the solemnisation of the marriage (Art. 2.3.10 par. 1 CC). Spouses who have not concluded a marriage contract are, as of the day of their civil marriage, subject to the statutory regime, which is one of community only of the property acquired after the marriage has begun. The spouses can, by mutual agreement, amend (modify or change) their matrimonial property regime during the marriage by authentic instrument. See 2.1 and 3.4.

3.4. May an existing contract be modified by the spouses? If so, under what conditions?

The spouses can, by mutual agreement, amend (modify or change) their matrimonial property regime during the marriage. The same limits of contractual freedom as mentioned under 3.1. If one of the spouses so requests, the act amending the matrimonial property regime is preceded by a notarial inventory of all movable and immovable property and of the debts of the spouses. A notarial inventory is required if the amendment of the matrimonial property regime results in the liquidation of the previous regime (Art. 2.3.8 CC).

3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?

A marriage contract containing a change of the matrimonial property regime is effective between the parties from the moment of conclusion of the authentic act, and towards third parties from the moment of registration in the Central Register of Marriage Contracts (hereinafter CRM), see Art. 2.3.10 par. 2 and 2.3.11 par. 2 CC. 

There is no retroactive effect of the marriage contract, nor of the changes to such a contract. 

It is possible to make a choice of law with retroactive effect, see art. 50, par. 3 of the Belgian Code on Private International Law.

4.1. Do one or more matrimonial property registers exist in your country? Where?

Matrimonial property regimes and legal cohabitation contracts in Belgium are registered in the central register of marriage contracts (CRM), which is a national database provided for by law. This digital register is managed by the Royal Federation of Belgian Notaries.

4.2. Which documents are registered? Which information is registered?

All marriage contracts and acts of amendment (modification of the matrimonial property regime or change to another regime) entered into since 1 September 2011, and legal cohabitation agreements entered into after 1 September 2015, drafted by a Belgian civil law notary are registered in the CRM. Furthermore, all marriage contracts entered into between 1 September 1981 and 1 September 2011 have also been registered for those contracts of which both parties were still alive. Lastly, judicial decisions rendered since 1 September 2015 which contain an amendment to the existing marital property regime or cohabitation agreement are registered. The register does not contain the acts themselves, but only metadata. For example, the register indicates when the persons involved concluded a marriage contract or act of amendment and what matrimonial property regime was chosen. The details of the parties as well as the identification of the person who has drawn up the act or has custody of it are also registered. The act and its actual content thus remain confidential.

4.3. How and by whom can the information in the register be accessed?

Civil law notaries, diplomats with a notary function, bailiffs and registrars of the court can consult the register. Other public authorities may have access as well but only insofar as a consultation is necessary for the execution of a specific public service. The parties to the contract also have access to the data that relates to themselves. Third parties need to show a legitimate interest, and access needs to be requested at the Royal Federation of Belgian Notaries.

4.4. What are the legal effects of registration (validity, opposability)?

By registration in the CRM, the contract may be relied on against third parties.

4.5. Can a matrimonial contract concluded in a foreign state according to foreign law be registered in your country? If yes, under which conditions or formalities?

A foreign matrimonial contract can only be registered if it complies with the requirements for recognition according to Belgian law, and the document is mentioned in the margin of a notarial act drafted by a Belgian notary and is subsequently attached to that act, Art. 2.3.9 par 2. CC. This type of procedure is for publication reasons only.

5.1. How is the property (rights in rem) divided?

The matrimonial property regime is dissolved and one must proceed with the liquidation and division of the matrimonial property. This depends on the applicable matrimonial property regime. Upon dissolution of the statutory regime, the assets of the common property automatically end up in a “post-community” joint ownership, to which - prior to the liquidation and division - the rules of the general law concerning co-ownership apply (Art. 2.3.68 CC). For the liquidation and final division of the matrimonial property, the exact composition of the three estates (cf. question 2.1.) must be determined (Art. 2.3.41-2.3.50 CC).

Upon dissolution of the universal community of property regime, the assets of the common property also automatically end up in a “post-community” joint ownership and in principle a division in equal parts takes place.

In the event of dissolution of a regime of separation of property, one merely has to proceed with the liquidation/division of any joint assets.

Within this framework, the Judicial Code provides statutory rules for a (judicial) liquidation/ division (Art. 1205 - 1224 Judicial Code).

In case the spouses added clauses with correction mechanisms in their separation of property regime, or if they have opted for the possibility of equitable adjustment, those measures will be applied.

5.2. Who is liable for existing debts after the divorce/separation?

This depends on the nature of the debts. Each spouse is separately liable for his/her own debts which remain after the division of the matrimonial property. The two spouses are jointly liable for the common debts that remain after the division of the matrimonial property (Art. 2.3.48 and 2.3.50 par 2 CC).

5.3. Does one spouse have a claim to an equalisation payment?

Yes, there are certain compensation mechanisms in place within the default matrimonial property regime and spouses can arrange the modalities in their marriage contract (Art. 3.44-3.47 CC).

In terms of the matrimonial property law: if there are no other clauses contained in a marriage contract or amending act, the common property is distributed fifty-fifty. The surviving spouse thus has in any case one-half of the common property in full ownership.

In terms of the inheritance law, the other half of the common property (and of the exclusive joint property between the spouses) also goes in full ownership to the surviving spouse if there are no children, but there are still surviving (step-) brothers or sisters, or (grand)parents. If there are children, the entire inheritance (half of the common property and the own property of the deceased spouse) goes to the children. If there are no children and also no (step-brothers or sisters and no (grand)parents, the surviving spouse receives the entire inheritance in full ownership. Nevertheless, the surviving spouse obtains the usufruct. It is also possible to include specific clauses in the marriage contract that ensure that the surviving spouse is favoured after the death (Art. 2.3.55 CC).

The surviving spouse is also specially protected with respect to the inheritance law. Thus a minimum share (reserved portion) of the inheritance obligatorily goes to the surviving spouse. However, the surviving spouse always receives at least the usufruct of one-half of the assets of the inheritance. This half includes at least the usufruct of the real property that served as the common residence and of the household assets present therein, even if that value is higher than the value of half of the usufruct of the inheritance (Art. 4.147 CC).

No.

For registered partnerships (in Belgian law: cohabitation légale/wettelijke samenwoning), each of the partners retains the assets of which he/she can prove the ownership. An undivided estate is created that is composed of the assets of which neither of the two partners can prove the ownership (Art. 1478 old CC). In the case of unregistered partnerships (In Belgian law: cohabitation de fait/feitelijke samenwoning), there exist only the two separate estates of the partners.

For each debt that is entered into by one of the registered partners for the purpose of the cohabitation or the children that are raised by them, the other partner is also jointly and severally liable (Art. 1477 par. 4 old CC). This is not the case for an unregistered partnership.

Upon the death of one of the partners, the surviving partner from a registered partnership receives the usufruct of the real estate that serves the family as common residence including the household assets (Art. 4.23 CC). This is not the case for an unregistered partnership.

Registered partners and de facto cohabitants can regulate their partnership by means of an agreement. In conformity with Article 1478 par. 4 old CC, such agreements must be established by notarial act.

For all legal actions brought, judgments given and acts issued until 28 January 2019, the Belgian courts have international jurisdiction in the event of disputes relating to the matrimonial property law if both spouses jointly bring a claim and one of the spouses has his/her habitual residence in Belgium at the time the claim is introduced, or if the spouses’ last common habitual residence was in Belgium less than 12 months before the introduction of the claim, or if the claimant spouse has had his/her habitual residence in Belgium for at least 12 months at the time the claim is introduced, or if both spouses have Belgian nationality at the time the claim is introduced (Art. 42 Code D.I.P.).

For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.

This Regulation provides that the competent authorities will be as follows:

• For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
• In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute (Art. 5).
• In other cases (Art. 6), the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
  • of the spouses’ common habitual residence at the time the court is seized; or failing that
  • of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
  • of the habitual residence of the respondent; or failing that
  • of the spouses’ common nationality.

With the exception of any litigation, notaries in Belgium are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract or a choice of law agreement.