In this post, we discuss the consequences of emigrating to Spain on your marriage contract. Do the arrangements in the marriage contract remain valid after emigration?
What is matrimonial property law?
Matrimonial property laws are the rules that determine when which partner is entitled to what. For example, if you marry without an agreement, under the legal system, you create a common estate with your partner. In principle, all your personal income (gains) will then belong to the common property, except for gifts, inheritances and income obtained prior to the marriage. In addition, there is the system of separation of assets in which the income in principle does not belong to a common estate, but remains your own. For completeness, there is also the full community of property, where basically all assets are common.
However, an intermediate form between community of property and separation of property is possible. Specifically, partners can agree on the distribution of accumulated assets via a prenuptial agreement. And this based on their personal situation and needs. Consider, for example, marital benefits or a settlement clause.
You were married before 29 January 2019
In that case, Spanish law applicable. For the validity of the marriage contract, one first looks at the law of the country of your nationality at the time of the marriage. If this does not resolve the issue, one looks to the law of the residence of the individual partners. If this too has no effect, Spanish lawmakers look to the law of the first joint residence of both partners. And if this also does not bring any relief, the law of the country where the marriage was concluded applies.
Specifically, for most Belgian married couples, Belgian matrimonial property law will continue to apply after their emigration.
You are married after 29 January 2019
In that case, it is European law applicable. Here, one looks first to the law of the country of the first joint residence. If this fails, the law of the country of the nationality of both partners applies. Finally, if this also does not work, one looks to the country with which the partners have the closest relationship.
Again, in the average situation, Belgian law will continue to apply.
You choose the applicable law
Regardless of when you got married, you can make a choice of law at any time. You have two options:
- the law of the country in which the habitual residence of one or both spouses is located, at the time of the conclusion of the marriage;
- the law of the country of nationality of one or both spouses at the time of the marriage.
That way, you can opt for Belgian law.
What in the event of death?
Upon the death of one of the spouses, the marital assets will first be dissolved. This will establish the equity of the surviving spouse. After that, the testator's estate can be divided based on inheritance law. Inheritance law consists of the rules that determine who gets what upon death.
In case of death of one of the partners, the law of the country of usual residence will apply. If you move to Spain, the Spanish inheritance law moneys.
To avoid inheritance law differing from matrimonial property law, it is advisable to draw up a Spanish will in which you choose the inheritance law of the country of your nationality. That way, Belgian law will apply to both the matrimonial property and the inheritance.
Decision: marriage contract still valid after emigration?
In an average situation, the agreements in the marriage contract will remain valid even after emigration. However, it is advisable to make a choice of law to avoid later discussions. You can also mention in your will that you choose the inheritance law of the country of your nationality. That way, you ensure that the matrimonial property and the inheritance can be divided on the basis of Belgian rules. Thus, you protect the surviving partner optimally.
Do you have any questions about emigrating to Spain? If so, please feel free to contact on.