3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
The spouses are not obliged to be subject to the statutory regime, but are free to adopt a marriage contract adapted to their personal situation.
The Civil Code defines three main contractual regime categories:
- community of property regimes,
- separate property regime,
- participation in acquisitions regime.
All contractual regimes are based on the principle that the spouses are free to adopt the matrimonial property regime of their choice. However, their freedom in this regard is subject to certain restrictions, as they must follow certain principles.
Thus, the marriage contract may not contravene accepted principles of morality (Article 1387 CC), derogate from the rules governing parental authority, legal administration and guardianship (Article 1388 CC) or provide for any agreement or waiver the effect of which would be to change the statutory order of inheritance (Article 1389 CC). The provisions of Articles 212 to 226 of the Civil Code, must be observed in full, except those which prescribe the application of matrimonial property regimes.
The community regimes are set forth in Article 1497 et seqq. of the Civil Code. The spouses may choose between a certain number of matrimonial property regimes, the best known being the universal community of property regime provided for in Article 1526 of the Civil Code. In the case of universal community of property, all current and future property, both movable and immovable, is common property. Therefore, the spouses have no separate property, the only exception being assets that by their very nature are the property of one spouse. All spousal debts are joint, and both spouses are jointly and severally liable for them. This applies even to debts incurred by one of the spouses prior to marriage.
The separate property regime is governed by Articles 1536 to 1541 of the Civil Code. Under this regime, in principle, the spouses have no common property. All property belongs to either one spouse or the other. Each spouse retains the rights to the administration, enjoyment and free disposal of his/her personal property and is liable for any debt incurred by him/her, whether before or during the marriage (Article 1536 CC). The only exception to this are debts incurred by one or other spouse with regard to the upkeep of the household or the raising of children.
The participation in acquisitions regime is governed by Articles 1569 to 1581 of the Civil Code. Each spouse retains the administration, enjoyment and free disposal of his or her personal property. During the marriage, this regime operates as though the spouses were married under the separate property regime, and at the time of its liquidation, it operates as a community property regime (Article 1569 CC).
3.2. What are the formal requirements and who should I contact?
All marriage contracts must be drawn up before a notary (Article 1394 CC). It is therefore essential to contact a notary in order to have such an authentic instrument drawn up.
3.3. When may the contract be concluded and when does it come into effect?
A marriage contract can be drawn up either before or during the marriage. If drawn up before the marriage, the contract may only enter into force on the day the marriage is celebrated (Article 1395 CC). If drawn up during the marriage, it takes effect between the parties as from the date of the authentic instrument (Article 1397, paragraph 2 CC).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
After the contractual or statutory matrimonial property regime has been in force for two years, the spouses may, by way of a notarial authentic instrument and subject to certain restrictions, make any amendments they deem appropriate or even change it entirely (Article 1397, paragraph 1 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?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
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