A marriage is concluded in community of property, unless the partners have had prenuptial agreements drawn up before entering into the marriage. However, not all goods fall within the community. When entering into a marriage under the conditions of community of property, the assets and debts of the marriage partners are combined. In general, it can be said that their property is jointly owned from the moment the marriage is concluded. In the event of a divorce, the common assets must be divided again.
Matrimonial community in prenuptial agreements
When drawing up prenuptial agreements, the partners can decide for themselves what will or will not be included in the community property. It can even go so far that the assets remain completely separate, even upon death. Prenuptial agreements can also be drawn up, which hardly deviate from the community of property. In the case of a marriage in community of property, the marital community applies, as laid down in law.
What is not community in community of property?
A number of things are not included in the community. This concerns related goods and assets acquired under an exclusion clause.
Outside the community via an exclusion clause
An exclusion clause can relate to a donation and an inheritance. Due to this clause, the amount donated or the amount obtained from an inheritance does not fall into the community of property of the recipient of the property. It constitutes, as it were, a separate asset of the acquirer. An exclusion clause is often included in a will or in a notarial deed recording the donation. This clause is intended to prevent the acquisition from having to be divided if the acquirer divorces. Without this clause, the acquisition must often be included in the division of the community.
Keep assets from exclusion clause separate
In practice, it often appears that assets subject to an exclusion clause often become mixed with the common assets. This will especially happen when money is involved. Over the years, the money is spent, and it is often no longer possible to determine what the money was spent on. In principle, this asset can be subject to substitution. If the capital is used to purchase a car, the exclusion clause then relates to the purchased car.
Related goods fall outside the community
This concerns assets that are linked in a special way to one of the two partners. For example, you can think of things that cannot be used by the other partner. A good example of this is clothing, dentures and a wheelchair. There are various degrees of attachment that can be identified. There are also assets that are in some sense linked to one of the partners, but to a lesser extent than, for example, dentures. In that case, the other partner is entitled to settlement of the value of the related property.
Mixing of assets can only be prevented by drawing up a prenuptial agreement
A marriage in community of property creates a mixing of assets. The whole becomes common property. Apart from the excluded goods, mixing can only be prevented by drawing up a prenuptial agreement.