A marriage can be concluded in community of property, but partners can also have prenuptial agreements drawn up prior to a marriage. The prenuptial agreement may contain a cold exclusion. Prenuptial agreements can be drawn up for various reasons. Partners draw up these conditions to prevent the legal arrangement from coming into effect in the event of, for example, a divorce or death. Prenuptial agreements can also be drawn up to prevent business creditors of one of the partners from recovering from the joint marital assets. When applying the cold exclusion, any common assets or income are excluded.
What can be recorded in a prenuptial agreement?
Roughly speaking, a three-way division can be made in prenuptial agreements. These forms are: limited community, settlement clause and cold exclusion. Each of these forms is used by notaries for different purposes. It depends entirely on the reason for drawing up the prenuptial agreement which is the best option.
What is Cold Lockout?
In such an agreement, all forms of commonality with regard to assets or income are excluded. In this form, the partners’ assets remain strictly separated. Together they bear the costs of the household, but the joint effort does not go much further. Marriage partners are mutually obliged to provide each other with the necessary things, but the rest is excluded.
The unreasonableness of cold exclusion
Notaries generally try to avoid strict cold exclusion. It can be unreasonable for the partner who has no income of his own, but has always had the common goal in mind. The moment the partners decide to no longer live together, the unearning partner is left with nothing. This form of prenuptial agreement is also being concluded less and less often.
What is warm exclusion?
Prenuptial agreements with a settlement clause are also referred to as prenuptial agreements with warm exclusion. For example, the income and household costs are divided equally between the partners every year. The amount that remains annually can be divided among the partners. This way there is still a common interest.
Prenuptial agreement – limited intercourse
In these prenuptial agreements there is a common part and a part that belongs to the private property of one of the two partners. The conditions can describe exactly which assets fall under the assets of one of the partners, and what is jointly owned.
Prenuptial agreement – community of fruits and income
In this form of prenuptial agreement, the partners retain private assets, but all income and other benefits acquired during the marriage are shared. However, this does not apply to assets that were mainly acquired with private capital. For example, income is joint assets, but a work of art paid for from the equity of one of the two partners remains private assets. Again, debts follow assets. If the work of art is paid for with borrowed money, this loan falls into the same assets in which the work of art falls.