BELGIUM Law and Practice Contributed by: Larissa De Wulf, Carolyn Vanthienen and Alexandra Goossens, Tiberghien
2.3 Division of Assets Property Regimes and Possibility of Relocation by a Judge
expense of the other spouse under certain cir - cumstances. Identification of Assets In the case of a judicial liquidation of the matri - monial property regime and division of the mat - rimonial property, as previously stated, a notary must be appointed. The notary has the respon - sibility to oversee the various steps in the pro - cedure of liquidation/division. One such step is the inventory of the estate. Unless all parties waive this requirement and jointly indicate which assets depend on the estate and have to be divided, the appointed notary will draw up the inventory of the estate. The ex-spouses are ordered to provide all infor - mation and documents useful for the fulfilment of the task of liquidating and dividing the matrimo - nial property. The parties are required to make full declarations under oath. If a spouse makes a false statement under oath, this spouse can be criminally prosecuted for perjury and risks losing all claims to the assets they have concealed with fraudulent intent. Trust Under Belgian Law Belgian law contains a definition of the legal form of a trust, in accordance with Article 122 of the Code of Private International Law, as fol - lows: “The term ‘trust’ means a legal relationship created by an act of the settlor or by a judicial decision, by which assets are placed under the control of a trustee in order to be administrated in the interest of the beneficiary or for a certain purpose. This legal relationship presents the fol - lowing characteristics: • the assets of the trust form a separate estate and are not part of the estate of the trustee;
The Belgian Civil Code sets out the various mat - rimonial property regimes. The statutory regime, in the absence of a prenuptial agreement, is a separation of assets with a community of acqui - sitions. If the spouses want to modify the statu - tory regime or wish to marry under a separation of property or a universal community of property, a marriage contract must be concluded. The liquidation of the matrimonial property regime and the division of matrimonial property takes place once the divorce has been granted. In the case of a divorce by mutual consent, the parties must reach an agreement on the division of their matrimonial assets and then the court will grant the divorce. In the case of a divorce on the grounds of irretrievable breakdown, a notary will be appointed to carry out the liquidation and division. The way assets are divided upon divorce is codi - fied in the Belgian Civil Code and can be stipu - lated in the marriage contract. The Belgian court cannot regulate or reallocate assets or resources upon divorce. However, in the case of a separation of property, the legal concept of a judicial fairness adjust - ment (Article 2.3.81 of the Belgian Civil Code) allows the court – under very strict conditions – to mitigate the consequences of the dissolu - tion of the marriage. If spouses opt for the sys - tem of separation of assets, they must indicate in their marriage contract whether they choose to include the possibility of a judicial fairness adjustment, with or without different modalities. If they do, the court may – at the request of the aggrieved spouse – award compensation at the
61
CHAMBERS.COM
Powered by FlippingBook