Married entrepreneurs – complete separation of property no longer the rule of thumb

Ann Westen   |  

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Ann Westen

Ann is part of the Tax & Legal team and specializes in, among other things, succession.

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Complete separation of property regime

In view of the risks inherent in entrepreneurial activities, entrepreneurs often opt for marriage under the complete separation of property regime. An important advantage of this system lies in the fact that creditors of the entrepreneurial spouse cannot lay claim to the other spouse’s assets.

The downside, however, is that each spouse’s income remains his or her own property.  If the other partner gives up his or her professional activity to relieve his/her other half of some of the (household) tasks, that partner may, in the event of a dissolution of the marriage, end up facing limited matrimonial solidarity. Moreover, that partner is not always aware of this fact.

The legislature has responded to this by reforming matrimonial property law. Since the reform, in addition to the complete separation of assets, the law also provides for a more generous system, i.e. the system of separation of property with a settlement clause for gains accrued during the marriage. A major advantage of this system is that the economically weaker spouse can, in the event of the dissolution of the marriage, lodge a settlement claim for half (or a percentage of his/her choice) of the difference between the assets accrued by the two spouses. The spouses themselves can lay down the determining factors in the marriage contract.

Fairness correction

The new legislation now also offers the possibility of inserting a clause in the marriage contract allowing courts to apply a fairness correction. This clause would be used if there have been unexpected and unfavourable changes in circumstances, as a result of which, taking into account the situation of the two spouses’ legal assets, the separation of property regime would lead to manifestly unfair consequences.
On the basis of such a clause, the disadvantaged spouse could apply to the family court to correct the unfair consequences of the separation of property regime in the event of divorce.  

In addition, the legislature has created a legal framework for the already common practice of adding a limited community to the regime of complete separation of property (so-called TIGV or ‘added internal common assets’). The basic system of separation of property can be linked to a limited community covering specific property, often the family home, for example.

At the same time, the notary’s duty to provide information has been extended so that no one will be allowed to enter into a marriage contract with far-reaching consequences rashly and uninformed.

The aforementioned changes have led us to conclude that it can no longer be assumed that a complete separation of assets is the rule of thumb for entrepreneurs who want to get married. The fact is that, more than ever, good marriage contracts need to be custom made.