Wealthy couples often marry under a separation of property regime, but this system can give a false sense of security.
In the event of a divorce, couples are often surprised to find that choosing this arrangement doesn’t eliminate spousal support obligations. Moreover, recovering personal funds invested in joint projects or assets can prove nearly impossible.
Separation of property
High-net-worth individuals, entrepreneurs, doctors, and others typically marry under a separation of the property system. This is usually done to protect their assets and their partners. For instance, if a doctor is sued for malpractice, their spouse’s assets are protected. Similarly, the wealthier spouse’s income and assets remain separate and don’t become part of the communal property, as they would under a legal marriage regime.
In the standard legal system, income earned during the marriage is assumed to be shared. Property separation mostly avoids this, but it’s not a perfect solution. The system doesn’t address every asset transfer and can leave spouses with a false sense of security.
Couples often believe that separation of property guarantees a *clean break*, especially for the wealthier partner. There’s an assumption that personal funds used to finance joint purchases can be recovered in a divorce as long as proof of payment is available. But that’s not how it works.
Who pays for joint assets is less important than who holds the title of ownership. If ownership is unclear, problems can arise. Courts rarely fix these imbalances retroactively. It’s vital to keep thorough records during the marriage, with written proof of major assets or investments.
For real estate, a notarial deed of purchase or a written acknowledgment of debt can be helpful, such as when one spouse finances major renovations to a jointly owned property. For movable property like cars or artwork, invoices, receipts, or bills in one spouse’s name can establish ownership.
Alimony
Alimony remains a thorny issue in divorces. Courts often award substantial alimony payments after a long marriage where one spouse has not worked or worked very little.
Though the law states that alimony should cover “needs,” courts often calculate it based on the couple’s standard of living during the marriage. In recent years, this trend has gone further than many expected, leading to unpleasant surprises, particularly because alimony can be awarded for as long as the marriage lasts. Paying thousands of euros every month, even after retirement, can be a heavy burden—both financially and mentally.
Alimony creates significant uncertainty, even if you are married under a separation of property regime. To make matters worse, alimony agreements between spouses at the beginning or during the marriage are typically invalid in Belgium.
This is not the case everywhere. Prenuptial agreements on alimony are permitted in Germany. While not yet legally recognized, such agreements are increasingly included in marriage contracts in the Netherlands.
The situation in Belgium seems increasingly outdated. Couples can make significant financial decisions and agreements when they marry but are not allowed to set terms for spousal support. This is an inconsistency.
Prenuptial alimony agreements
This is why we advocate for the possibility of binding prenuptial alimony agreements, which would allow for greater contractual freedom regarding spousal support.
For ultra-wealthy clients, who often marry in an international context, this practice is already common. Before the wedding, agreements are made about who receives what in the event of a divorce and which law applies. This way, each party knows in advance what the costs will be in different scenarios. However, these agreements are only enforceable because the less wealthy partner does not pursue additional claims to better their position. If they do, the payment obligations outlined in the marriage contract are voided.