Naar Een Billijk Relatie-Vermogensrecht (Dutch) (Towards an Equitable Relational Property Law)
Alain Laurent P. G. Verbeke
University of Leuven, Director Rector Roger Dillemans Family Property Law Institute, Codirector Institute for Contract Law, Codirector Leuven Center for Notary Law; Harvard Law School; University of Leuven, Faculty of Psychology; Antwerp Management School; Tilburg Law School Department of Private Law and TISCO; Catholic University of Portugal (UCP) - Católica Global School of Law; Greenille Attorneys
March 17, 2001
Tijdschrift voor Privaatrecht (Journal of Private Law), pp. 373-402, 2001
In this article I sketch the principles that should underly an equitable system of property law not only for married couples but also for unmarried cohabitants in an intimate conjugal relationship. After explaining some points of criticism on the Belgian marital property law system, I elaborate on criteria that may serve as the basis for an equitable marital property law system. One point is that marital property law should create in the internal relationship between spouses some level of fairness, also upon divorce. I therefore argue that contracts of pure and simple separation of property should be invalid and that an imperative system of participation in marital gains, through an obligatory claim between the spouses, should be introduce. My second point is that marital property law should have no external effects. Third parties and creditors should not be advantaged nor prejudiced by marital property rules. Towards third parties the marital property regime should be irrelevant, giving full application to the common property rules.
In a second part of the article, I then argue that such reasoning should not be limited to married couples but equally applicable to all intimate conjugal relations. As soon as such relationship surpasses a turning point of commitment (be it a common child or x years of cohabitation), there deeds and actions of living in reality like a married couple should overrule their words or choice of living together without commitment. The imperative participation mechanism should also apply to such couples, as well as other rules of e.g. alimony and inheritance law. That is why I argue we should get rid of marital property law to have it replace by relational property law.
Note: Downloadable document is in Dutch.
Number of Pages in PDF File: 15
Keywords: Marital Property Law, Marital Contract, Inheritance Law, Alimony, Creditors
JEL Classification: K 11, K12Accepted Paper Series
Date posted: March 25, 2011
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