A happy marriage starts with transparent arrangements
A happy marriage is based on love but most spouses only realise at a later stage, that a wedding also creates legal bonds. We cannot advise you about love, but we can give you the best advice and support concerning all the relevant legal arrangements.
Getting married brings certain mutual rights and obligations. These rights and obligations concern such matters as looking after each other and the status of your possessions and debts. If you and your partner have not had any specific additional conditions laid down, then there is a community of property between you. This means that all the possessions and debts that each of you has brought 'into' the marriage are owned by you both. If you do not want this, you will have to draw up a marital agreement, often called a prenuptial agreement, or a partnership agreement if you are not married but have had your partnership registered.
A marital agreement is drawn up by a civil-law notary and contains the arrangements that the spouses agree on, preferably before their wedding day, as regards the material consequences of their marriage. This is a bespoke agreement, based on what you have agreed with your partner. Its contents depend on your circumstances and wishes.
Before you get married, you will probably not be thinking about certain aspects which may affect your property at a later stage. However, looking ahead is important, especially if one of the spouses has been married before or may come into an inheritance.
A marital agreement is a good way to map the consequences of these events and to make an unambiguous and transparent arrangement. And it is also important that you make the right arrangements in time to prevent any legal or financial problems resulting from the death of a partner, which obviously everyone hopes will not happen for a long time to come.
For example, you can prevent half of all your possessions and debts becoming a part of the estate. By drawing up a marital agreement, both spouses continue to be the owners of their own share of the property, thus avoiding the situation that the surviving partner has to pay too much inheritance tax.
And if one of the spouses has their own company, it is also important to make the proper arrangements to prevent any negative consequences of this entrepreneurship impacting on your private life and private property. A marital agreement can be the answer to this as well.
In fact, you can see a marital agreement as a kind of insurance against any extra inconvenience if things unfortunately do not go as planned.
Setoff clauses or 'periodical netting covenants'
A marital agreement or a partnership agreement also lays down what is to be considered as the costs of the household, to which proportion you both contribute to these costs, and the circumstances surrounding such matters as financing your house. At the same time you should also indicate what is to be done with the income that is left over every year. A setoff clause or periodical netting covenant is included in marital agreements to prevent any imbalance.
Cheaper before you get married than afterwards
You should preferably draw up your prenuptial agreement prior to your wedding day, as after you have got married you will have to go to court if you would like to draw up a similar agreement. If you are not married then you can do this via a notary.
Once you are married, you are also each other's heirs. As soon as there are children, they will become your fellow heirs. A last will and testament is then an important document to complement your prenuptial agreement.
The easiest way to draw up a prenuptial agreement? Simply make an appointment at our office!
When do you need an prenuptial agreement?
- If you do not want your possessions and debts to become joint property.
- If you or your spouse have your own company.
- If you have been married before.
- If you might come into an inheritance.
- To pay less inheritance tax.
Just suppose … you have signed a purchase agreement for a new house which is planned to be handed over or 'transferred' in ten months. Your intermediary tells you, the buyers of the house, a young couple, that drawing up a cohabitation contract may be advisable. He advises you to contact the notaries' office, but also says there is no hurry, since this cohabitation contract need not be signed until the legal transfer of the house, i.e. in ten months.
But what if the very worst happens and one of you dies suddenly? What then? The cohabitation contract, on the basis of which all joint property, such as the house, would go to the surviving partner if the other partner dies, has not been drawn up yet.
The consequence: the deceased partner's heirs, his or her relatives, are now entitled to half the house being transferred to them, instead of to the deceased partner. If the purchase agreement cannot be dissolved, the surviving partner will become the owner of the house together with the deceased partner's relatives. Should the relatives decide to relinquish their half, this will be considered a gift to the surviving partner, and a considerable amount of tax will have to be paid on this. The surviving partner may also buy their half from them, but this also involves a substantial amount of money.
All this could have been prevented by not delaying the cohabitation contract until the moment when the house was to be handed over. If the cohabitation contract had already been signed, the transfer claim would rest on the surviving partner, due to the “survivor's clause” in the cohabitation contract. The entire house could then be transferred to him or her, without the deceased partner's relatives being involved at all.
This might sound a bit far-fetched, but sadly these things do happen. Therefore I would advise the following: if you are buying a house which will not be handed over in the near future, do not wait until the moment of legal transfer to sign the cohabitation contract.
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