when married in community
Division of assets when married in community of property
Married before 1 January 2018
If you married before 1 January 2018 and did not go to a civil-law notary for a prenuptial agreement, then all your possessions and debts that existed at the time you submitted your divorce petition are, in principle, part of the community of property. This means that each spouse owns 50% of all the possessions and debts. It does not matter if a possession or debt was acquired before or during the marriage. There are a few exceptions to this rule, the most important of which are:
- Possessions and debts acquired from a legacy or a gift that are subject to a provision whereby they are not part of the community of property;
- In some cases, possessions and debts attaching to one of the spouses.
Married on or after 1 January 2018
If you married on or after 1 January 2018 and did not go to a civil-law notary for a prenuptial agreement, then you too are married in community of property, but the community of property is different to the situation described above.
In this case, only the possessions and debts acquired during the marriage form part of the community of property. This means that any possessions and debts you had before the marriage remain the private property of the spouse concerned. Gifts and legacies are also private property, unless it is determined that they do form part of the community of property.
There are exceptions to this type of community of property too, the most important of which are:
- Gifts and legacies about which it is determined that they do form part of the community of property;
- Goods attaching to one of the spouses, in some cases;
- If, from a perspective of reasonableness and fairness, and depending on the nature of the debts, a different share of the burden (other than 50/50) exists;
- If, before your marriage, you jointly owned a possession, but not on a 50/50 basis, then you will both be 50/50 owners after your marriage if you have not agreed that the original division should be maintained; in this case, you would therefore have to draw up a prenuptial agreement.
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