LUXEMBOURG Law and Practice Contributed by: Frédéric Feyten, Alejandro Dominguez Becerra, Gérard Maîtrejean and Pawel Hermeliński, CMS
The form of the marriage contract remains free as long as it is not contrary to good morals and certain imperative rules. In this respect, the spouses could not modify the legal order of succession. The mar - riage contract may also be subject to foreign law in the presence of an international connection (eg, if one of the spouses is a foreign national). The Luxembourg civil code recognises the following matrimonial regimes. • The primary regime – which must imperatively to be respected in all points where the provisions do not reserve the application of matrimonial agreements. It sets out rules of public policy like spouses owe each other fidelity, relief and assis - tance. They cannot appropriate the rights by which the family’s housing is ensured, nor the furniture with which it is furnished. Similarly, solidarity with household debts is presumed. The provisions of the marriage contract cannot contravene the respective rights and duties of the spouses. These obligations cannot be waived. • The secondary regime – which provides additional rules under the following three community regimes: community of property, separation of property, and community of property acquired during marriage. The Community of Property Regime (Régime de la Communauté Réduite aux Acquêts ou de la Communauté de Biens) In which the spouses each have their own property next to the common property consisting mainly of their professional income and all property acquired with it. Under this regime, the property acquired after marriage falls into the community and, in case of dis - solution of marriage, all assets are divided according to the three estates. Certain assets remain the prop - erty of one of the spouses, if the person is able to prove their ownership (assets acquired before the cel - ebration of the marriage, assets of a personal nature or assets acquired by donation or succession). Moreover, debts contracted before the marriage remain personal, but creditors can nevertheless pursue the indebted person both on their personal property and also on property that has entered into community due to this spouse (eg, on their income).
Debts contracted by one of the spouses for the main - tenance of the household or the education of children may be pursued out of all common property. When a debt has entered into community due to only one of the spouses, it cannot be pursued against the other spouse’s own property. The Separation of Property Regime (Régime de la Séparation des Biens) Under this regime, there is, in principle, no common good between the spouses. By signing a regime of separation of property, the spouses retain the admin - istration, enjoyment and free disposal of their personal property. Nevertheless, the assets that would have been purchased in common will be deemed to belong jointly and equally to both spouses in case of dissolu - tion of the marriage. Each spouse remains solely responsible for his/her own debts, whether they were born before or during marriage, except as regards debts incurred for the maintenance of the household or the upbringing of children which are always binding on both spouses. The Community of Property Acquired During Marriage Regime (Régime de la Communauté Universelle) Providing for a kind of equal distribution of community upon dissolution of the marriage. Under this regime, all the couple’s property, acquired before and after mar - riage, belongs to the community. There are therefore no separate assets. With the exception of personal clothing and family souvenirs (personal belongings), everything is part of the community. Also, all debts are common. The spouses are therefore jointly liable, even with regard to debts incurred by one Gift tax is payable on the transfer of real estate assets situated in the Grand Duchy of Luxembourg, regard - less of whether the notarial deed was executed in Luxembourg or abroad. Transferred assets are val - ued at their market value. It is not possible to sub - tract from this value the charges and debts which the donee is required to pay and which may encumber the property. Gift tax rates vary between 1.8% and of them before the marriage. 2.5 Transfer of Property
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