Proposition 51K2514

Projet de loi modifiant, en ce qui concerne le droit successoral à l'égard du cohabitant légal survivant, le Code civil et la loi du 29 août 1988 relative au régime successoral des exploitations agricoles en vue d'en promouvoir la continuité.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

May 29, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

inheritance law of succession civil union cohabitation

Voting ¶

Voted to adopt

CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR

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Discussion ¶

Jan. 11, 2007 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, dear colleagues, dear Mrs. Minister, I will first report on the work of the Justice Committee in connection with the present bill. The committee discussed this bill and the attached bills during five meetings, on 20 June, 4 July, 28 November, 5 December and 12 December last year. Legislative proposals originally added to this bill were disconnected during the discussion at the request of the respective applicants.

During the introductory presentation, Minister Onkelinx emphasized the following: In civil law, the effects of legal cohabitation are today limited to some rules from the primary marriage system. One of the main objections expressed in recent years is that the legal cohabitation between the partners has no effect on the inheritance. Legal cohabitants have no claim to each other’s inheritance, regardless of the heirs with whom the survivor enters the inheritance. The cohabitants may favour each other by gift or testament, but in the presence of reserve heirs they can only dispose of a limited part of their inheritance. In contrast, in recent years, the regions have taken fiscal measures to equalize the rates of succession rights between married and legally cohabitating persons. This has caused confusion among the legally cohabiting persons regarding their inheritance rights and made them wrongly believe that the differences in inheritance rights had also been eliminated by civil law.

Therefore, this draft aims to introduce an intestate treaty, an inheritance right without a will, only for the benefit of the legally cohabiting partners. The inheritance right relates to the use of fruit in the home in which the cohabiting couple lived and in the house council present therein.

Finally, in analogy with what applies to the longest-lived spouse, this draft aims to prevent that if the first deceased childless legal cohabitant leaves ascendants, this reduction could be claimed from the gifts made by the first deceased in favour of the longest-lived legal cohabitant.

During the general discussion there were presentations by Mr. Walter Muls, colleague Van der Auwera, colleague Massin, colleague Verherstraeten, colleague Burgeon, Martine Taelman, Bert Schoofs and myself.

During the article-by-article discussion, amendments were submitted by the government, which made a number of improvements.

Amendments were submitted by colleagues Storms and Muls, who intended to make the bill also applicable to actual cohabitants and not only to legal cohabitants.

Amendments were also submitted by colleagues Verherstraeten with the same purpose.

The bill was eventually adopted with 14 votes for and 1 vote against.

So far, my report. Now I would like to give a brief speech on behalf of the VLD.

Colleagues, the legal cohabitation was introduced by law of 23 November 1998 to recognise other forms of society such as homosexual relations and provide a legal framework in addition to the marriage between a man and a woman.

Since the entry into force of the law on 1 January 2000, it has always been assumed that few statements of legal cohabitation were made and that it was actually an empty box. In the first year, in 2000, only 5,144 statements were made.

However, recent figures have shown that the number has increased year after year. In 2001 there was a major peak, likely to be explained by a collection movement as soon as the right figure was sufficiently known. Separately, the number of statements has increased steadily, with a record number of 30,749 in 2005, more than 12,000 more than the year before. For comparison, the number of marriages has stagnated in recent years to 43,000.

As regards the relationship between marriage and legal cohabitation, the following. Where in 2000 18% of couples who institutionalized their relationship chose legal cohabitation and almost 90% for marriage and in 2003 the ratio was 21% legal cohabitation and 79% marriage, the ratio in 2005 evolved to 42% legal cohabitation and 58% marriage.

These figures show that the introduction of legal cohabitation was a good initiative. Legal cohabitation has many advantages. It is a more smooth institution than marriage, with fewer rights and duties. The main rules relate to the property legal aspect. In addition, there is a minimum protection that mainly relates to the family home.

The arrangement relating to the goods and the possibility of arranging for the rest in a contract or agreement the legal cohabitation avoid disputed divorces. It is also not unimportant that the non-cohabitants do not have a lifetime maintenance obligation above their heads.

This does not mean that there are no improvements possible. It may indeed be necessary to review and adjust the 1998 law where necessary, as provided by a number of pending bills.

Until then, however, we believe that relevant gaps can still be filled, not least with regard to the inheritance right as provided for in the present draft law. As I have already stated in the report, in this respect, it is now only provided that legally cohabiting persons are equalized with married persons in terms of the rate of succession rights, an initiative taken by the regions.

After all, practice teaches that many couples ultimately do not choose legal cohabitation in the absence of a solid inheritance status to this day. Legal cohabitants may benefit each other through donation or testament, but are limited to this if there are reserve heirs present. In addition, they are obliged to use terms of accusation and tontine. Practice shows that partners who make a declaration of legal cohabitation actually want to give each other property protection in case one of them dies. The bill we are going to vote on today responds to this and is therefore an important step forward.

However, the VLD is reluctant in terms of placing the actual cohabitation within the scope of the law, whether or not sustainable, as was proposed in the committee by colleagues from sp.a-spirit and CD&V. We believe that couples should be able to choose to simply actually live together, without certain legal rights and obligations. If they do not want this, they can choose marriage or legal cohabitation. This should be a free choice of the partners.

Finally, dear colleagues, and with this I decide, we have identified another problem related to legal cohabitation, more specifically with its unilateral termination. Legal cohabitation can be terminated in two ways. This can be done by means of a joint declaration with respect to the civil status official, for which the ex-partners must still be able to pass through the door of that civil status official together. In some cases, this is no longer possible and the only remaining possibility to terminate the legal cohabitation is unilateral by means of notification by a court executor, which, of course, costs a certain amount of money, as opposed to entering into the legal cohabitation which is entirely free of charge. As a result, many couples are still officially known today as living together, while their relationship has long ended. This can have negative consequences, for example, in the event of the death of one of the partners and especially if the bill that is now ahead has entered into force. The VLD has therefore prepared a bill that wants to provide a solution to this and will submit it soon.

Finally, I would like to say that we will fully support and approve this bill.

I would like to thank the rapporteur for her excellent report.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, I will no longer refer to the figures relating to social contractors and marriage figures, which the rapporteur cited. I confirm them. In any case, it is a fact that the figures of the number of marriages and the number of social contracts are growing to each other. In 2005, the ratio was 42% versus 58% married. However, this does not prevent us from having the courage to take into consideration that, despite the very recent law on social contracts, in that very short period of time one in five of those relationships has already dissolved. The threshold for separation is much lower in legal cohabitants, and ⁇ also in actual cohabitants, than in married people.

In any case, however, we must recognize and respect the new forms of society, regardless of their composition. I believe that every sustainable form of society deserves support, regardless of its composition, because every sustainable form of society brings solidarity and responsibility.

However, the different forms of society also give different rights and duties. In the philosophy of your draft on social contracts and marriages, there is equal treatment of succession rights. This may give the interested parties the impression that this also applies to inheritance, which is not the case. Therefore, you have changed the inheritance law, but a distinction and a difference remain anyway. The confusion and misunderstandings that could and will be in the field, therefore, may continue to exist. Indeed, the intestate inheritance law is limited to the use of fruit on the property and the house council. It is not a reserve inherited. This can be excluded from a testament. Therefore, the possibility of confusion remains, but the design is a step in the right direction.

We would have preferred to see a reservist inherited, especially because the economically weaker in a social contract still have a slightly stronger position. If there are no children with both parties involved, we would rather have seen that the inheritance would go to the cohabiting partner rather than to the State, or in that case to the Flemish government.

However, we do not understand something. It is obvious that there can and should be more inheritance rights for legally cohabiting persons, but there was no fixed duration. A legal social contract is concluded very quickly and also very quickly dissolved.

On the contrary, we actually leave untouched cohabitants who, by way of speech, have lived together for a decade or two. The durability of coexistence is there much longer than, for example, in social contracts. This, in my opinion, is in a way against the sense of solidarity that I think should be present in every relationship. Every sustainable social association, regardless of its society, must indeed give rise to rights, but in my opinion it also creates duties and responsibilities.

At this time, a tendency is developing in which the obligations of marriage are slightly reduced. We are developing divorce rules that make divorce increasingly easier. On the contrary, we are creating other social associations where more rights are granted without obligations. This tends toward an individualization of relationships which our group is absolutely not in favor. A relationship should also create responsibilities, not only in good but also in bad days.

I advocate to halt the evolution that has taken place in recent years by creating more responsibilities and duties for other forms of society as well. The comments I have made, Mr. Speaker, regarding this bill and my suggestion to extend certain rights to those who actually live together when they live together in a sustainable manner, for example when they have common children or have an immovable property together. I have put all this into amendments that I consider to be explained here.

Mr. Speaker, I sincerely thank Mrs. Lahaye-Battheu for her report. However, I disagree with what she stated in her presentation, namely that it was a good initiative to provide the legal cohabitants with a legal basis in their relationship. She then draws figures showing that 42% have already concluded a contract of legal cohabitation and that 58% opt for marriage. When one systematically makes marriage more unattractive for several decades and opposes it to another form of society that gives a legal basis, then people in times of individualization – as colleague Verherstraeten pointed out – will obviously be more inclined to choose “smaller form” for that let us say.

After all, we should gradually no longer speak only of the great marriage that we know from the past, such as the great adoption of that time, a form of society, an institution as such, which was always carried by society. Well, by the systematic breakdown of that institution, a kind of small marriage has now also been created. This legal cohabitation now, by the fact that in such a relationship the inheritance rights are opened, I think it has the status of a small marriage. The big marriage, the institute we know, is thus systematically reduced in appeal, and the small marriage will make more and more split.

Of course, one then comes to the conclusion – here I follow colleague Verherstraeten – that the duties to which one sees himself connected with respect to each other in such a relationship become a little less and that the rights become a little more but that the legal certainty and the consistency of the families in society are not improving. There are more and more broken families, rival families and the like. This is an evolution that we do not welcome. According to us, this goes further and further because one will be allowed to consider the legal cohabitation as a small marriage.

You feel it already coming, we are not supporters of this arrangement. I said this in the committee too. We continue to adhere to marriage as the carrier of the traditional family and to the traditional family as the cornerstone of society. We are consistently conservative on this point.

We also regret that parties such as spirit and CD&V want to go even further and that they want to provide the actual cohabitation in certain cases with a legal basis as regards the inheritance rights. In fact, CD&V – sorry, colleague Verherstraeten – opposes itself in this. If one wants to choose a solid bond, a bond that provides sufficient legal certainty when one lives together in a partnership relationship for ten to twenty years, in a family, then I think it should pay the effort to enter into a marriage anyway. When we are talking about inheritance rights between people who do not have an intimate relationship with each other or yet do not have a partnership relationship with each other, then we must change the inheritance rights. That branch of the law must be addressed. Therefore, one should not create any kind of wrong marriage. It is in this logic that CD&V is activated. We are totally opposed to this. We will therefore consistently oppose and vote against this draft.

I will check whether any amendments have been submitted. I’ll wait until they’re rounded up, because this is a very short, but interesting design – as everything that happens here is interesting. I would like to open the article discussion.

As with all that comes from the Justice Committee, Mr. President.

That was of course, Madame. I didn’t need to say it, but thank you for pointing it out.

My problem for reviewing the articles now is whether amendments have been reintroduced.

Ladies and gentlemen, do you want to help me a little? I will now have the article-by-article discussion.

Mr. Speaker, during the general discussion, I said that through my general explanation I also considered my amendments as explained.

The problem is to know which amendments were submitted again. Have you restored them all?

I didn’t take them all back. I have only submitted a limited number of submissions.

Mr. Speaker, I have only re-adopted the amendments concerning the extension of social contracts to actually cohabiting persons who have either common children or common property.

There is still no amendment on the case where there are no legal heirs, the inheritance does not go to the regional authorities but to the cohabiting partners.

Sir, I just got them here. I know that amendments are not always submitted again in the plenary session. Only with the most important thing happens.

I will try it. Help me if you want to be so good.