Distribution of assets and settlement of prenuptial agreemen
Community of property or prenuptial agreement
If the spouses have not seen a civil-law notary to prepare a prenuptial agreement before or during their marriage, they are married in community of property. Generally, it means that the spouses will each get half of the assets they have at the time their marriage ends. This could relate to the house, its contents, insurance policies, cars, bank balances, shares, etc, but also to debts, such as a mortgage. Inheritances and gifts from, for instance, parents form part of the matrimonial property, unless a will stipulates otherwise.
If the spouses have drawn up a prenuptial agreement, it is necessary to assess how much the spouses owe each other according to that agreement. No prenuptial agreement is the same.
A popular choice is a combination of an 'exclusion of every community of property' and a regular or final set-off clause. In that case, the spouses will have to settle the value of certain assets with each other at the end of the marriage. If, during the marriage, a spouse has received gifts and/or inheritances, it is wise to gather the documentary evidence thereof. It is necessary to assess whether the gifted or inherited assets remained private or were subsequently shared.
As the wording of a prenuptial agreement is not always that clear, it often happens that everything depends on what the spouses' exact wishes were when the prenuptial agreement was drawn up. We therefore recommend finding the (draft) documents from the civil-law notary and his explanations thereof.
Reasonableness and fairness play an increasingly important role in the court's decision when the parties themselves cannot agree about the interpretation of their prenuptial agreement.