Marriage or cohabitation? Legal cohabitation or de facto cohabitation?
We briefly outline the differences for you in this Wanted Fact.
What are the formalities when entering into organised cohabitation?
To enter into de facto cohabitation, no formalities need to be fulfilled as it is about a de facto state. Factual cohabitants therefore enjoy great freedom.
In contrast, legal cohabitation does require compliance with formalities. The partners must make a joint declaration of legal cohabitation to the civil registrar.
To get married, couples must make a declaration to the civil registrar at least 14 days before the wedding date. Married couples can enter into a marriage contract, in which they can choose the property regime for during the marriage. There are several options here such as a pure separation of assets to a full community of property. If the future spouses do not conclude a marriage contract, they will automatically fall under the so-called legal regime.
What are the formalities for termination of cohabitation?
Since entering into de facto cohabitation does not involve the completion of formalities, termination is also not subject to compliance with formalities.
As with entering into legal cohabitation, termination requires a declaration at the civil registrar's office. Please note that the cohabitants do not have to do this together. The termination can therefore be done unilaterally, by a declaration by only one partner.
Married couples will have to go through divorce proceedings. This can be done on the demand of one of the spouses or by both spouses together. Judicial intervention is always required in a divorce, it is the family court that will rule on the request for divorce.
Inheritance law
In principle, de facto cohabiting partners do not inherit anything from each other, as no legal inheritance law is provided for them. Partners can, however, bequeath something to each other through a will.
In contrast, legal cohabitants do have a legal right of inheritance, but this is very limited. Upon death, the surviving partner will be entitled to the usufruct of the family home and the household effects present there. Beware, this inheritance share is not protected! Via a will, a partner can limit the inheritance of the other partner or disinherit completely. If one wants to leave more to one's partner, this must also be done via a will.
Married couples enjoy the greatest protection under inheritance law. Upon death, the surviving spouse will receive usufruct of the entire estate, at least of the family home and its contents. Exactly what the surviving spouse will inherit depends on the marriage regime chosen and whether there are children. In addition to this legal right of inheritance, the surviving spouse also has a protected minimum inheritance share. You cannot disinherit your spouse just like that, the legislator sets strict conditions and formalities to do so.
What about your assets and income?
In principle, for both de facto cohabitation and legal cohabitation, each partner remains the owner of their own property and income. Each partner therefore has their own estate. That does not mean, however, that cohabitants cannot arrange anything between themselves. Through a cohabitation agreement, partners can make arrangements, for example about expenses, the management of certain assets or financial contributions. For de facto cohabitants, such an agreement may be drawn up privately or by notarial deed. For legal cohabitants, a cohabitation agreement must be executed before a notary.
What about the children?
In the case of de facto or legal cohabitation, parentage on the father’s side or the co-mother’s side is not automatically established merely by living together. In that case, a recognition is usually required before the civil registry or a notary. For married couples, there is in principle a presumption of paternity or co-motherhood. This means that the mother’s husband is automatically considered the father, or the mother’s wife is automatically considered the co-mother. However, there are legal exceptions to the presumption of paternity, so it does not apply automatically in every case, for example in certain situations of de facto separation or during divorce proceedings.