Algemeen Kader der Huwelijksvoordelen (General Framework for Marital Advantages between Spouses)
HUWELIJKSVOORDELEN, R. Barbaix, N. Geelhand & A.L. Verbeke, eds., pp. 1-38, Larcier, 2010
20 Pages Posted: 26 Mar 2011 Last revised: 14 Apr 2011
Date Written: March 24, 2010
In this article, I sketch a general framework for the theory of marital advantages between spouses under Belgian Law. These are transfers between spouses in the context of their marital property regime that are deemed for consideration. Being no donation such transfers remain immune to claims from forced heirship entitlements. These marital advantages exist in all marital property systems, be it community of property or separation of property contracts. However, based on a literal lecture of some articles of the Civil Code, a minority opinion in Belgian scholarship argues for a restricted approach to marital advantages,limiting the qualification to community property regimes.
In this article, I first try to answer such critique, in a Popperian way, by falsifying each one the arguments presented. In a second part I explain the general principles of a Belgian theory of marital advantages as it has been developed by majority opinion in scholarship and confirmed by two judgments of the Antwerp Court of Appeal and one of the Constitutional Court. Since the article has appeared the Belgian Supreme Court (Cour de Cassation) in its judgment of 10 December 2010 also has confirmed majority opinion.
Note: Downloadable document is in Dutch.
Keywords: Marital property law, Marital contract, Donation, Marital Advantage, Inheritance Law
JEL Classification: K11, K12
Suggested Citation: Suggested Citation