Le Contrat de Mariage de Séparation de Biens: Plaidoyer pour une Solution Equitable: Avec Clauses (Marital Contract of Separation of Property: Pleading for an Equitable Solution: With Model Clauses)

Abstract:     
This book is the French and updated edition of a contribution in Dutch, written in 1995.

The book offers a profound and substantial analysis that is leading for Belgian law, in the area of separation of property and corrective clauses.

First, I make a comparative analysis on the basis of which I argue that a counsel who advises a strict contract of separation of property without warning the couple for the harsh consequences thereof, does not behave professionally ethically.

Furthermore, I give a clear definition and criteria for determining the marital property regime as being community or separation. The key is in the automatic and immediate community status of income from labor.

I also explain how common or undivided masses may have three different qualifications: the ordinary undivided mass on the one hand and the community property in a community regime on the other hand. In between we find the internal community (TIGV) in systems of separation of property.

Furthermore I analyse all ins and outs of both the internal community property added to a separation system.

Finally I analyse all ins and outs of participation clauses, arguing how such clauses may be added to a contract of separation and offer a fair compromise between the legal title to assets and the internal equity between spouses through corrective obligatory claims. I explain how such clause may be construed, distinguishing in detail between the participation mass, key, time and modalities.

The text also offers up to 67 possible clauses for marital contract.

This book has played a leading role in the mitigation of harsh marital contracts of separation of property under Belgian Law, by influencing the contract practice of notaries. Both the internal community (TIGV) and participation clauses have become widespread.

One recent criticism on the TIGV does not seem to hold ground. I have argued against this unjustified criticism in a recent article in Tijdschrift voor Notarissen, 2011.

Note: Downloadable document is in French

Keywords: Marital Property law, Marital contract, Community Property, Separation of property, Internal community (TIGV), Participation clauses

JEL Classification: K11, K12

Accepted Paper Series