Before marrying, prospective spouses can select the most suitable property regime for their situation. When submitting the marriage application, you can select which option is best for you:
- jointness of property binds the spouses very strongly in financial terms;
- set-off of assets increment gives the spouses greater property independence while ensuring that the financially weaker spouse retains a certain degree of security;
- separateness of property means that you are completely independent as spouses in terms of property.
The fourth option for determining a property regime is to enter into a marital property agreement.
Jointness of property, set-off of assets increment and separateness of property
If the prospective spouses do not select a property regime on the marriage application or enter into a marital property agreement, jointness of property is the default regime applied. Jointness of property means that assets that are acquired during the marriage are jointly owned by the spouses. If one of the spouses wants to make a transaction with the matrimonial assets, they must have the consent of the other spouse. In the event of a divorce, the matrimonial assets will be divided equally.
Set-off of assets increment means that assets acquired during the marriage are the sole property of each party. Assets belong to the spouse under whose name they were acquired. As an exception, the consent of the spouse who is not the owner is needed to make transactions with a dwelling used as a family home.
The most independent property regime is separateness of property, where property belongs to the spouse in whose name it is and who acquired it during the marriage.
Marital property agreement
A marital property agreement that was entered into before the marriage will enter into force on the date of the marriage contract. A marital property agreement authenticated by a notary may be entered into before or during a marriage. By agreement of the parties, the martial property agreement may be amended or a new marital property agreement may be entered into. At the request of a spouse, the marital property agreement will be entered in the marital property register.
A marital property agreement determines which property remains separate property and which is considered joint property, and how this joint property is used and how it is divided, if necessary. The marital property agreement may not deny a spouse or divorced spouse the right to receive maintenance or waive the right to divide the joint property of the spouses upon termination of the marriage. A matrimonial property agreement is terminated upon termination of a marriage, if you enter into a new matrimonial property agreement or if the property regime is terminated in court.