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?
The same applies to both de facto and legal cohabitants. The partners each remain sole owners of their own property and income. So each of the partners has their own assets. It is a big misconception that with cohabitants, not much can be arranged. Through a cohabitation agreement, some internal arrangements can be made about, for example, the management of assets, etc. This agreement must be drawn up by a notary to be valid.
For married couples, in this area, everything depends on the chosen marriage regime.
What about the children?
In both de facto and legal cohabitation, the father/co-mother of the child is not automatically seen as the official father/co-mother. One will first have to explicitly recognise the child at the civil registry. This recognition can be done, with the mother's consent, either before or after the birth.
For married couples, the presumption of paternity or co-maternity applies. This means that the mother's spouse is automatically considered the child's father or co-mother. The legal parentage link with the child is automatically established because of the marriage between the spouses. Note that this presumption applies even when there is no biological parentage link with the child!