Proposition 54K2848

Projet de loi modifiant le Code civil et diverses autres dispositions en matière de droit des régimes matrimoniaux et modifiant la loi du 31 juillet 2017 modifiant le Code civil en ce qui concerne les successions et les libéralités et modifiant diverses autres dispositions en cette matière.

General information ¶

Authors

CD&V Sonja Becq
MR Philippe Goffin
N-VA Sarah Smeyers
Open Vld Carina Van Cauter

Submission date

Dec. 13, 2017

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil law law of succession married person matrimonial law

Voting ¶

Voted to adopt

CD&V Open Vld N-VA MR

Voted to reject

LE PS | SP PVDA | PTB

Abstained from voting

Groen Vooruit Ecolo DéFI ∉ PP VB

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

July 18, 2018 | Plenary session (Chamber of representatives)

Full source

The rapporteurs Goedele Uyttersprot, Laurette Onkelinx and Kristien Van Vaerenbergh refer to their written report.

I give the floor to the first candidate, Mrs. Becq.

Mr. Speaker, although the temptation among some is great to let it go a little quietly, since we have been discussing marital property law for a long time, I still think it is important to briefly explain our proposal.

The proposal was drafted in the extension of the inheritance law, in consultation with representatives of notaries, lawyers, professors and colleagues of the majority, under the leadership of Minister Geens. Marital property law is inextricably linked to inheritance law. We had to take into account the fact that a lot has changed in our society. The last time I was taught marital property law, we were sitting together at the banks, Mr Geens, in 1976. Since then, a lot has changed and our legislation is working on that. First, we want more security. Second, the mutual solidarity between the spouses who wish so is strengthened.

In short, I would like to highlight the most important points.

In our proposal, we create greater clarity in definitions, for example in the definition of own goods and community goods. These definitions are contained in the general provisions and apply in parallel to the indivisibility within the separation of goods.

Separation systems are also very strongly based on solidarity between spouses. In our law, we want to strengthen the protection of weaker parties. As a government, we have the task of applying that to the marriage system, even in the case of a system of separation of property, which is sometimes described as a cold exclusion, but in which we wish to provide that care.

Separation of goods is often chosen because of the business, in order to avoid an affected person inducing his or her partner into any debts if the professional activity turns out to be negative. Sometimes a separation of goods is also chosen because one of the partners has a greater asset than the other, for example, accumulated from the past. Therefore, we are also introducing a new system of facilitation, namely, the separation of goods with a settlement, by analogy to a French-German treaty. In the transfer condition, a part of the proceeds may be allocated according to a ratio chosen by the spouses, in the event that the partners break up due to divorce or in the event of death.

An important element of solidarity is the judicial equity clause, which we have also discussed for a very long time. In doing so, a balance has been sought between those who would want an office equity clause in a system of separation of goods to protect the weak partner – which we were advocating – and others who find that this is not possible and advocate a complete free will. Therefore, we have chosen to give the notary very explicitly a great responsibility when future spouses appear before him or her, in order to clarify the possibilities within the framework of a separation of goods to also build a greater solidarity, on the one hand through the settlement condition and on the other hand through the equality clause, which really is about equality, which must be manifest and a little unforeseen at the moment when one enters into marriage.

The proposal reinforces solidarity and clarifies a number of concepts, but at the same time retains a large freedom of choice for spouses. After all, one marriage is not the other: people get married a little later, sometimes have already been married before, maybe have larger and smaller children when they get married again, therefore we have left a wide choice and have also provided for changes in the reserve for the longest-lived spouse in case of a second marriage.

Finally, we are also building the bridge to legal cohabitation: we have provided that partners who live together and buy a home together can already decide that, if they ever get married, that is also part of their common wealth. This is an important measure. In fact, they do not have to have a marriage contract concluded specifically for that purpose, for which they must go to the notary again, but it can already be included in the legal system.

We have had long discussions in advance and also in the committee, which is important for the interpretations that will follow. I would therefore like to thank my colleagues, but also all those who have cooperated with the proposal in advance. I would also like to thank our spectators, who were very active participants: Ms. Casman, who did so without voluntary remuneration – I want to emphasize it again – and Ms. De Jaegere, who also contributed to a process in which we together made legislation. I think it is important that this is possible. I would like to thank you, Mr. Minister, who made this possible.

Mr. Speaker, Mr. Minister, dear colleagues, this draft highlights two quite different visions, approaches or values of inheritance law involving the need to find a balance between, on the one hand, the protection of the surviving spouse and, on the other hand, the rights of the children. The authors, since it was initially a bill, chose to confirm, to amplify, a whole series of provisions passed a year ago. These provisions, we strongly contested them because they deprived children of rights and the inheritance reserve, among others.

Here, through changes to marital regimes, more specifically the theory of marital benefits, the situation of children will be further aggravated by allowing the spouse to have a predominant share of the family inheritance. Indeed, it is now permitted, also for spouses in separation of property, to assign to the surviving spouse all the common estate, depriving the children of their reserve. If the majority of the property constitutes the common inheritance, the children shall not inherit at that time anything.

The story repeats itself, but with different victims. There was a time when, truly, the surviving spouse was ignored. Therefore, mechanisms have been developed to protect them. From mechanism to mechanism, we realized what experts called a real “toxic cocktail.” Today, history repeats itself with other victims: children. I am confident that we will soon have to find a mechanism to correct the choices you have made. With the extension of life, it can happen that for thirty years, children have to wait for their part with the risk that the succession may also fluctuate heavily. In any case, the children will, at best, have to undergo a postponed succession.

To try to rebalance, the bill allows the surviving spouse to be desherited from the concrete reserve, the usufruit of the family home, in the case of recomposed families.

This mechanism is also very special: it is possible to reduce the usufruct on the family housing by transforming it, in some way, into a right of housing for six months. The deadline is ⁇ short. Imagine the following scenario: barely making his mourning, the spouse must evacuate the family housing.

In reality, in all this project, what is disturbing is the freedom to excess that is granted both to disherit their children and their spouse and to diminish their respective rights to ultimately result in a situation that is totally unequal between them.

The second major criticism concerns this famous "equity clause". It would allow, at the end of the marriage, to give the other spouse an indemnity if, listen carefully, "a manifest iniquity during the marriage as a result of unforeseen circumstances" occurred. This is exactly what is, right? No, it means nothing and I thought that normally the law should be clear and precise enough to avoid further trials. With a provision containing such vague notions, most witnesses heard told us that this will lead to a puzzle in courts and courts.

The representative of the College of Courts and Tribunals even said: “Give us additional resources! We will need more judges because there will be a number of trials around these notions that will go by expanding.” So, I’m not going to review everything, but the Avocats.be website has brought an impressive series of reviews on this equity clause. The state council also ... I pass, and the best.

Another criticism I mention without delay: one finds a scheme with regard to life insurance but, unfortunately, without going to the end of the process since this scheme is not applicable to group insurance and, more generally, to pensions of the second pillar.

Finally, we miss the car to solve an unconstitutionality already highlighted by the Constitutional Court. And, as the State Council points out, somehow an unconstitutionality is repeated.

That said, as I expressed in the committee, the text also brings improvements, interesting clarifications on marital status, certain property and rights of companies, compensation for accidental disability, etc. Certain provisions of the legal regime are applied to the property separation regime, such as the potential allocation of family housing. A legal framework is introduced for the clause of participation in acquisitions - which was already done in practice. But here again, experts said, you worked in such a way that the notions are blurred. The project amplifies the legal uncertainty of this already complex area.

Finally, I would like to mention what happened in the committee and which I deeply regretted. Mr. Brotcorne, remember: we come up with a package of amendments, almost at the last minute, that change in part a law passed a year ago. This is regrettable, insofar as it was not possible to examine what the State Council, witnesses or experts could have said about it. For now, the law passed a year ago is being formed, while the proposed text is changing it.

I did not like the way the discussion was conducted in the committee. Since it was a text of the majority, that all its members stood by the barbecue, it was above all necessary not to touch anything. When you ask questions, sometimes you get answers and sometimes, “Ah, it’s like that! The majority decided, “Is this a way of working? There were amendment proposals made by experts, which were relayed by amendments and which proved indispensable. The majority colleagues answer: “No, no, we do not touch anything!”

This is how we work now in this Parliament: there is a text; everyone has a finger on the sewing of the pants; we are small soldiers; we vote. The opposition can say what it wants. Experts, witnesses, even university professors say, no matter, you don’t change anything. It is not serious!

The text under review not only breaks the balance between surviving spouses and children. But it also brings a lot of legal uncertainty on certain topics, even though it brings some improvements. Moreover, the work that took place in the committee endorses a way of working that is unworthy of Parliament.

This is the reason why we will not vote in favour of your bill.

Ms. Onkelinx, we have indeed discussed the various themes and also your criticism that the residence in case of renunciation to the reserve is limited to six months. This applies in the case of second marriages. There is a huge difference with second marriages. But people today do not take the step because they want to protect the rights of their children. We understand this and therefore leave a free choice.

Mrs. Onkelinx, I would like to show you that with a concrete example. If you can give me another solution, you can do so.

Imagine the following. I will marry. I have two children of 35 years old. My new partner in the second marriage also has two children aged 30 and 35. We both have our own home. We are marrying. A home is chosen as the family home. The reserve will apply to that family home. In that home the longest-lived will be able to continue to live at the detriment of the children, which does not apply in the opposite direction for the home that is not the common family home. That is a reason for many not to marry again, even though they would like to. We have removed that obstacle by giving the proposed possibility, only and only in the case of a second marriage.

Ms. Onkelinx, for the equity clause, we have indeed stipulated that it has become a choice, where people will be able to make informed choices and the judiciary will effectively do its work, as it does today when it comes to situations between spouses.

You also talked about insurance. I am going through the curve somewhat briefly, but in this regard we would otherwise replace the one inequality with another. A group insurance will be treated differently compared to a supplementary pension, both of which have the same finality. In this context, there is a debate about equality and inequality.

Finally, Mrs. Onkelinx, we held hearings. It was following those hearings that the text was amended. We have tried to transmit as much information as possible to the site, including through the notary, in order to establish a good arrangement.

Indeed, we hope that by September 1st, the inheritance law and the marital property law will come into effect jointly, which everyone has insisted on.

I would like to resume the debate – and even submit a few amendments! – but I am convinced that the answer we will have here will be the same as the one we had in the committee: “We do not touch anything.”

We have proposed to extend the duration of the right of housing a little. Six months is very short to turn after a mourning, which can be ⁇ difficult to assume. Is it because you don’t like re-marriages that it wasn’t possible to change that six-month duration? Nothing is! And for the equity clause, we told you that the State Council and avocats.be wondered what was the plus-value of this clause, since the maintenance after divorce and the theory of causeless enrichment already organized more solidarity between spouses, with more legal certainty.

You are intervening and I want to give one of the many answers provided to you in the commission. I tell you: what shocked me most was this inability to open up to the arguments of the opposition and experts.

Mr. Speaker, colleagues, we have, of course, listened to the arguments, Mr. Onkelinx. We exchanged arguments in the committee. It is not because we have listened to your arguments and views that we should necessarily have changed our minds. If you make that determination, given the justified answers, I regret that you obviously cannot accept that we do not share the same opinion but nevertheless to a well-considered...

You know that is not accurate. We discuss a series of projects or proposals for which you do not take our amendments. This is democracy and I think this is normal.

But here it was really a “no”! Because of a so-called too fragile balance, you didn’t want to touch anything and that’s what was deeply annoying.

I know what parliamentary democracy is and here it has not been properly respected.

Mrs Onkelinx, I would like to comment on some of your comments, such as on the relationship between the longest-lived spouse and the children under the marital property law and the marital benefits.

With this proposal, we have not changed the existing balance. The possibility existed and still exists to allocate to one another, by marital benefit, what the spouses have jointly built up. You know too well that people often choose the system of the separation of goods to protect each other. They want to protect their own assets and those of their partners, for example, against a malfunctioning company or potential creditors. We have chosen to grant marital benefits also to persons who choose the system of separation of goods from 1 September, so that those who build a fortune together can provide for each other through a marriage contract, which decides that if one of them falls away, the longest surviving will acquire what they have built up together. That is a logical choice in the regulation as it exists today and we have not changed the balance. Nor have we changed anything to the protection rules of Article 1464 and following of the Civil Code. In the case of marital assets and non-common children, there is also a very strict restriction regarding the granting of a marital benefit to each other.

Mrs. Onkelinx, in this proposal we have therefore absolutely not rearranged the existing balance.

Second, as regards the concrete reserve, we have provided for the possibility of allowing those who may wish to marry each other at a later age, at the time when they have children who would naturally and according to the law become their heirs, to choose a partner without seeking to harm the children. That is their own choice. They should not choose a clause or a clause or a marriage contract in which they would deny the concrete reserve to the second partner, but it is a possibility. To prevent people facing a death from falling into a difficult situation, the restricted right to residence has been introduced. It is indeed a very limited right of residence, since it is preceded by a conscious choice of two spouses to renounce the concrete reserve. If one makes a certain choice, it is logical that one also accepts it in its entirety, with all its consequences.

Third, as regards the equity clause, if one wants to be certain of what, following the dissolution of a system, exactly ultimately belongs to the other partner in the context of the separation of goods, then there is the possibility not to choose the equity clause, but rather for the possibility of a final settlement. The rules have been agreed very clearly in advance. They are not subject to interpretation. What will be the accounting mass? How will the distribution key look like? This is ⁇ known in advance. That is certain. This is also a choice that people have. One can choose a final compensation condition, if one wants to allocate a portion of the net mass acquired to each other. If this is not done, one can still opt for the equity clause, which is a safety net for unfair situations that could possibly arise as a result of a dissolution, along with a system of separation of goods.

Why we only settled the problem of the status of the goods and the individual life insurance, but not the additional pensions, that you know very well. In fact, we have developed a scheme relating to the individual life insurance, which is indeed connected with the insurance law and not with the pension scheme. The pension scheme, not only for the second pillar but also for the first pillar, will have to be regulated within another legal scheme, in particular that concerning pensions. This was also emphasized during the discussion in the committee, Ms. Onkelinx. This is without prejudice to the current case-law of the Constitutional Court, which will continue to affect the manner in which it is liquidated and distributed, including with regard to the second-pillar pension.

Fifth, you will find the penalty that today, even before the law came into force, again a number of provisions in the inheritance law are amended. We have indeed chosen that. You know that the reform of the inheritance law was a very large-scale reform, in which we have worked as carefully as possible. Nevertheless, the interventions of a number of actors on the ground have shown that certain situations could occur that were not immediately considered and not included in the adopted text. I will mention only one, namely the fact that one as a married partner can reserve the use of a property that one gives away during the marriage with a second partner to, for example, the children from the first relationship. This fruit use can also be continued by the second partner. We did not think about that situation. Indeed, we did not think of a marriage preceded by a legal cohabitation. Even in those cases, we could allow the fruit use to be continued by the second partner. That seems to be evidence and we fully support it, only we had not paid attention to it and had this situation avoided us.

Instead of waiting for the entry into force of the law and the difficulties that would relieve in practice, following this proposal, we immediately seized the opportunity to resolve, before the entry into force, a number of points that would cause difficulties in practice. I support that choice and hope that you, when you look closer, can also get behind it.

Finally, I would like to thank my colleagues for the good cooperation. I also thank the experts, not least Ms. Casman, for the assistance that was occasionally needed in this highly technical matter. Of course, I thank the Minister, who gave us the space to come to this proposal, which in practice hopefully will solve a lot of difficulties.

Mr. Speaker, I would like to thank you for giving me the opportunity to reflect on what Ms. Onkelinx said about our way of working in committees and to reflect on Ms. Van Cauter’s remarks. I believe that we limit here a little to the absurd, unless it is surrealism in the Belgian, which would ⁇ be more acceptable than talking about absurdity.

From the beginning, it was said. In these matters, we have worked in reverse. The ideal would have been to start with the marital regimes and continue with the succession right or even to do both together. We did the opposite, starting with the succession law and then, a year later, we are working on the reform of the matri-monial regimes. On this occasion, we are surprised and we find that the way we have worked in the field of succession law is influenced by the reform of the marriage regimes and therefore we will amend the law on successions.

I am not embarrassed by the fact that we are already discussing in the colloques of the law on successions. On the other hand, I was very embarrassed and very angry in the committee because we are already discussing, in the colloquiums, the law that we have not even voted yet, as if it was already an achievement. This is also contrary to good parliamentary work. It is to consider that – and I repeat the expression I heard in the mouth of Ms. Van Cauter – the field actors, because they denounce or put their finger on certain things, have more importance than what opposition MPs can say. Yet, often, when they are on commission, they sometimes (not always) put their finger on certain things that are not correct, that are imperfect or missing.

I think that we have just done here, with this ten-minute debate, the turn of the sometimes absurd, in any case inconsistent way in which we work in our committees. I allow myself to say it now rather than at the time when I had considered it, at the beginning, in my text.

This reform of marital regimes: of course it was useful, of course it was necessary, of course there was a modernization of the texts to bring. The problem in this matter is that, as we heard at the time of the hearings, either we are quite in favour of the option that was taken by the authors of the proposal, or we ask ourselves a lot of questions in relation to the choices that have been made. It is all black or all white. Sometimes the truth is in the middle.

Admit that in this case, some choices are really political. You should not be afraid to say it. It is up to Parliament to make political choices. One can disagree with the political choices made by a text, say it, want to amend it and then, democratically, a majority decides what they consider to be good.

In this case, the big concern we have... I am not the only one who has it. I listened to Mrs. Onkelinx. I have no word to remove or add to his fundamental criticism of these texts. The choice was made to prefer a surviving spouse over children, to legally assume the protection of that surviving spouse at the expense of children. This is what the law does when it tends to allow or extend to the regime of separation of property the provisions relating to the patrimonial rights of the surviving spouse that were applicable to the common property of spouses married under the regime of the community.

Of course, there is no concern about the removal of the competition with the ascendants, brothers and sisters, if the spouses are married in the regime of separation of property and there are no children of the deceased. There is also no problem in terms of preferential allocation of family housing, furniture furnishing it, professional goods.

The real problem is the extension of the theory of marital benefits to the regime of property separation. The real question we could have asked ourselves is the possible removal of the theory of maternal advantages in the search for balance.

The balance between the surviving spouse and the protection of the children often born from a first bed: that was the balance to be achieved and not attained at all. On the contrary, here the protection of the right of the surviving spouse is further strengthened, protection that did not exist before 1976, which was organized from 1976 and was strengthened in 1981.

As part of the succession reform we voted a year ago, we considered raising the quota available from the second child. The cash reserves have already weakened the balance, which we denounced at the time. And, today, we end this break of balance with the extension of marital advantages to the regime of separation of property by saying, besides, that we will consider them by analogy to what existed in the regime of community.

In my view – that’s my opinion, which may not be that of the majority who supports the text, but it’s also the opinion of the Socialist Party; I’m also happy to find that on a point like that our views converge – there is a total imbalance between the interests of the surviving spouse and those of the children.

In 1804, when the Civil Code, the Code Napoleon, introduced marital benefits, it was precisely in the interest of protecting children.

Today, it is the spouse who is privileged, and therefore it is the children that must be protected in a care of good balance. We have submitted amendments. I have to say here that in the committee, we did not always feel a great interest in the submitted amendments. Sometimes amendments that had purely technical values were rejected for the simple reason that the political option taken by the majority could not be jeopardized.

I spoke a long time with Ms. Becq after a committee meeting. I asked her what disturbed her so much in our amendments aimed at modernizing the situation. She told me that in Flanders things weren’t perceived in this way, and I answered that, in my opinion, Flanders had made the political choice of preferring what the surviving spouse would choose, or who would die for the benefit of the surviving spouse, rather than the children. So this is a real choice of society that my group cannot accept.

I am not saying that children should be favoured compared to the surviving spouse but so much has been affected by the balance that existed between the one and the other than today, it is a real imbalance that is instituted. In a certain way, and this is the greatest criticism that can be made to the text of this proposal, it is individualism that is favoured. Individualism is, in my opinion, exacerbated in the way this text looks at things.

A child in a couple is a permanent bond. You can divorce your spouse, but not his or her children. This is a reality that seems concrete and objective. Symbolically, the principle of making and keeping children as heirs may have a symbolic or financial aspect but it is an essential aspect when one wants to ensure the maintenance of the bonds that we think are essential within the society in which we live.

This, dear authors of the proposal, is the fundamental criticism that can be made to this text. I will add that independently of the Socialist Party and the CDH, the site avocats.be says that the bill further aggravates the possibility of attributing to the surviving spouse a predominant, if not total, share of the estate at the expense of children, and, this, mainly with respect to children from a previous union. Hello to all the disputes that the family courts will have to deal with tomorrow in matters of succession and marital regimes.

That said, other aspects of this text must still be emphasized: judicial correction in equity. I think the idea is timely and excellent. But the problem lies in the fact that I’m not convinced, just like other field actors who may come to speak later – and maybe the text will be corrected after they have manifested themselves and not after hearing the criticism of the opposition.

The established system seems hardly applicable, since the correction must be provided at the time of drafting the marriage contract - increasing the notary's responsibility and therefore not giving this possibility to those who would not have planned to consider it, because at the time of drafting a marriage contract, one cannot imagine all the circumstances of life: especially at the patrimonial level, what will become this couple, how it will proceed to acquire, how the family estate will develop.

It is provided in the text that can be corrected when there has been a manifest inequality. Greetings to the interpretations, to which we will have to deliver, of texts as unlawful as these! These are our essential criticisms, in order not to resume the debate, which has sometimes been difficult and hectic in the committee. These two essential criticisms will not allow my group to support this text. We will vote against.

Mr. Speaker, just a small comment!

I expected more solidarity in the head of the CD&V – and what I still believe is his ideology – compared to the defense of the best interests of children, well understood, in relation to the interests of the surviving spouse.