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29/08/2020

Everything you wanted to know about legal cohabitation.

Legal cohabitation? Help, I don't want to go all the way yet!

Legal cohabitation, de facto cohabitation or marriage? You do want to live with your partner, but you are not yet ready to get married. Although solidarity with regard to each other does not sound bad, you still want to take small steps. What do you do then?

Just living together, also called actual cohabitation, is perfectly possible, but legal protection is almost non-existent. Over time, there will be some assimilation with legal cohabitation. An example of this is that you acquire the family home exempt from inheritance tax upon the death of your partner, provided you have been living together for at least three years.

Legal cohabitation provides a lot of solidarity, but without the great pressure of marriage, as you can quickly and easily end this form of cohabitation. Hence this plea for legal cohabitation: one of the three forms of cohabitation in addition to actual cohabitation and marriage, and a good 'marriage' between flexibility and protection.

But how do you know whether this form of cohabitation is suitable for your situation?

Getting married seems like too much of a commitment to you at the moment. Or you are afraid that the grind of your previous marriage will only be repeated. In that case, legal cohabitation can be the pre-eminent form of cohabitation. You have more protection while you are free in a cohabitation agreement if you want to show solidarity with your partner.

Legal cohabitation is often used by young people as a test marriage, while older people opt for this form of cohabitation because they do not want to marry (again) and only want to live together. Potential problems regarding inheritances or non-shared children are often at the root of this.

However, many think they are better protected by legal cohabitation than they actually are. That is why it is important to draw up a cohabitation agreement. Although the latter does not always happen. For de facto cohabitants it is sufficient to draw up a basic agreement. Since there is no protection mechanism at all for the actual cohabitants, this is also advisable in that situation.

Below we would like to first explain the general principles of legal cohabitation. We will then indicate which clauses you can best include in order to optimize your cohabitation agreement.

Can I enter into legal cohabitation?

In principle, anyone can enter into legal cohabitation insofar as he or she is not yet bound by a marriage or other legal cohabitation and he or she is capable of contracting.

The gender, kinship or sexually-affective nature is irrelevant. You can even enter into a legal cohabitation with your brother or sister.

Since legal cohabitation comes down to a contract between two people, you must be able to give valid consent. There is no valid consent if you are not aware of your actions, for example because you are in a drunken state. Even in the event of coercion, the registrar of births, marriages and deaths may refuse legal cohabitation.

Legal cohabitation does not come about by mere living together, but after the fulfillment of a few formalities.

How do I enter into a legal cohabitation?

The procedure you have to follow is quite simple: You only have to submit a written statement to the registrar of births, marriages and deaths of the common place of residence. It is not even required that you are present together. The registrar of births, marriages and deaths will then check whether the above conditions have been met. After a positive check, the official will make a notification in the population register. This is the moment when legal cohabitation is officially established.

The time of the creation can be important for the creation of the inheritance right for the surviving partner.

How can I end a legal cohabitation?

This form of cohabitation is much easier to end than a marriage. You don't have to go to court. It is sufficient that you make a statement again with the registrar of births, marriages and deaths. The other partner's agreement is not even necessary.

Moreover, the legal cohabitation is dissolved by operation of law upon entering into a marriage or upon the death of one of the partners.

The moment when the notification in the population register takes place will mean the end of your legal cohabitation.

What protection does legal cohabitation offer me?

As soon as the legal cohabitation starts, you enjoy a certain protection, but some obligations also arise.

First of all, there is the protection of the family home. Your partner, even if he or she is the owner of the home, cannot unilaterally dispose of the family home (eg gift or sell) or encumber it with a mortgage without permission. This also applies to the existing household effects. Moreover, you can never just be evicted from the house.

Even when the family home is a rented property, there are some rules. For example, your legally cohabiting partner is a co-tenant by operation of law, even if the tenancy agreement was entered into before the legal cohabitation.

Secondly, both partners must contribute to the costs of living together in proportion to their income. The cohabitation agreement can determine exactly what this will mean. This obligation continues as long as the legal cohabitation does not officially come to an end. After all, a de facto divorce will have little or no consequences.

Thirdly, there is joint and several liability for certain debts entered into for the benefit of the children and the cohabitation. In addition, under common law, there is a special maintenance obligation for the children of the predeceased partner. When you first die, your partner will still take care of your children.

As far as the goods are concerned, the general rule is that you keep your own goods. Only if you cannot provide proof that the object belongs to you, will this be regarded as joint ownership. Your income is also your own.

What tax benefits do I have with legal cohabitation?

One of the many advantages of legal cohabitation is in the area of ​​tax consequences.

When you enter into a legal cohabitation, you can choose to file a joint personal income tax return. The “marriage quotient” will be applied here. This is beneficial if one of you has a lower income.

But there are also many advantages in terms of gifts and inheritances.

In principle, as the surviving legal cohabitant, you will receive the lifelong usufruct on the family home and the existing household effects. A will can limit this. The minimum legal right of inheritance is the usufruct on the family home and household effects for six months after the death. But the will can also greatly expand the inheritance law. The possibilities are endless.

You will be able to perform transactions in the lowest category of tax rates. This means that on the one hand you can perfectly donate an investment portfolio at 3%, but on the other hand that the inheritance rates of 3% – 9% – 27% also apply in the event of death. Legal cohabitation will even ensure that the children of your legal cohabiting partner who are not in common can receive gifts or inheritances at the same rates, if you wish. All this ensures that you can plan endlessly and avoid taxes.

In addition, you can acquire the family home exempt from inheritance tax from day 1. In the event of actual cohabitation, you must have already been living together for three years.

But above all, legal cohabitation ensures that your partner will not be left out in the cold after a long-term relationship, without a cohabitation agreement, when you die. After all, the actual cohabitation designates your partner - from a legal point of view - as a foreigner.

What should I consider when drawing up a cohabitation agreement? How can I show solidarity without going all the way?

The cohabitation agreement determines the organization and the property consequences of living together and the influence on the goods. In this way discussions can be avoided in the event of a possible dissolution. Think of it like choosing an umbrella in full sun so as not to get too wet if it rains later. It is important to make good agreements when everything goes well, closing a fair deal after your partner cheats or lies to you is less obvious.

At the start of the legal cohabitation you make a list of the goods that belong to you and an arrangement about the fate of future goods.

In addition, you decide which management acts you will put together alone or together. Just think of entering into a loan agreement for a car.

On the basis of common law, both partners will contribute equally to the costs of living together. In the cohabitation agreement you can agree on what amount each month will be deposited into the joint account to pay joint costs and define exactly what those costs fall under.

What happens when Mrs. always pays for the food and clothes for the children and Mr. the investments and the installments?

Mrs.'s costs are a daily cost, while Mr.'s costs are rather an unusual and 'exaggerated' contribution to the costs of living together. The result is that after a relationship breakdown, the costs paid by Mrs. are more likely to be costs that were mutually settled on a day-to-day basis, and those of Mr. are more likely to concern investments that exceed this and have a chance of settlement afterwards.

Depending on the partners' original intentions and the size of the amounts paid, this may lead to an unfair situation. To avoid such situations, you draw up a cohabitation agreement.

It is also best for you to determine what will happen to the family home in the event of a dissolution. It is best to make several hypotheses:

  • You own both;
  • One of the legal cohabiting partners is the owner and bears all costs related to the home;
  • One of the legal cohabiting partners is the owner, but the other makes a contribution to, for example, pay for the renovation work;
  • You entered into the rental agreement together.

For example, you can make a compensation arrangement for contributions that exceed the proportionality of the costs. You can include a clause for reclaiming (part of) the loan payments when the relationship comes to an end or when the family home is sold. A similar stipulation can also be drawn up for financing the renovation work.

In addition, you also make better agreements regarding household effects, since the basis of legal cohabitation comes down to a separation of property. You can make a distinction between the situation whether the legal cohabitation ends by means of a divorce or upon death.

In the case of a tenancy agreement, you can also designate who may take over the tenancy agreement when you have entered into the tenancy agreement together.

Arrangements for the distribution of income may also be important. What if you choose to stop working and provide for the family? In this way you will contribute less financially, but much more in the field of raising the children and the household. In the event of the termination of the relationship, you stipulate compensation for the household work.

What is unfortunately missing in legal cohabitation is a duty of assistance. This means that your partner will not have to pay maintenance after the relationship ends, regardless of the length of the society or when you are in need. In order to avoid unfair situations, you can stipulate a kind of “severance payment” in the cohabitation agreement. In this way, your partner will pay a monthly allowance for a certain period, for example equal to a maximum of the duration of the legal cohabitation. You are of course free to attach conditions to this (ceiling of income or difference between your incomes, etc.). Even installing a similar system to maintenance money after divorce is possible.

The most important arrangement, of course, concerns your children. There is already joint and several liability for debts incurred by one of the partners for the benefit of the children. But what happens to them when you no longer live together?

You can make an arrangement about the upbringing and parental authority and how you will divide the costs with regard to the children.

There are several clauses that you can add to your cohabitation agreement:

  • Accrual clause – in the event of your partner's death, his part of the good will accrue to your assets
  • The anticipatory contribution – the real estate will automatically belong to the joint property when you later marry your legal cohabiting partner
  • Day to day settlement – ​​no settlement of costs after termination
  • Regulation on the future of investments made during legal cohabitation
  • Analogous application of various marriage clauses

What am I not allowed to include in my cohabitation agreement?

The big difference with marriage is that no one can restrict your individual freedom. For example, you cannot oblige your partner to be faithful or to cohabit in the cohabitation agreement. Nor can you oblige your partner to pay a compensation that is unlimited in time after the relationship has ended.

Legal cohabitation only offers the surviving legal cohabitant the usufruct of the family home and household effects. Additional arrangements regarding inheritance law must be laid down in a will. The will can extend or limit the right of inheritance. You cannot therefore include inheritance law agreements in the cohabitation agreement.

In addition, you must always keep in mind that your cohabitation agreement may not conflict with public order and morality, or with the rules on parental authority.

Cohabitation agreement: required to go to the notary?

In the case of actual cohabitation, the legislator does not impose any formal requirements when drawing up your cohabitation agreement. You can go to the notary, but this is certainly not necessary.

However, there has been some discussion about legal cohabitation for a long time. The law prescribes that the cohabitation agreement must be an authentic deed. But what happens to your cohabitation agreement when you take the step from de facto cohabitation to legal cohabitation?

The Court of Appeal in Ghent ended this discussion in its judgment of 7 November 2019. The court ruled that a cohabitation agreement is a solemn agreement and therefore absolutely null and void if no authentic deed exists. This may be beneficial for some, although we assume that you enter into the cohabitation with a different attitude.

So in that case, make sure you do it right.

Does this mean that a civil-law notary must draw up the cohabitation agreement in full?

Certainly not. You have two options: either the civil-law notary draws up the cohabitation agreement in full, or you draw it up yourself or with the help of your adviser and have it ratified/homologated by a civil-law notary. In principle, you can also cover the notary's fees with the latter method.

Please note: if you already have a cohabitation agreement, it is best to have it checked regularly by your lawyer. There are several events in life that can have a major impact on your cohabitation agreement. Think of having children, becoming self-employed, etc.

Obtaining information in good time can also help you, given that this agreement is part of a larger whole: ow wealth accumulation and estate planning.

Is legal cohabitation something for me?

To know whether legal cohabitation is right for you, you need to consider several elements.

For a young couple, legal cohabitation with a basic cohabitation agreement is often more than sufficient. Compared to marriage, it is while you get a lot of legal protection in a simple way.

But also if you are a newly formed family with children not shared by common law, legal cohabitation can be ideal, since in a will you can limit the inheritance right of your legal cohabiting partner to six months of usufruct on the family home and household effects.

If you want to receive an occupational disease benefit in the context of the death of the first dying partner or a pension benefit as a surviving partner, a notarial cohabitation agreement will be required in which you include a mutual assistance obligation. An actual cohabiting partner will not be able to receive this benefit.

Do you want help?

Would you like help drawing up your cohabitation agreement, or would you like advice on entering into a legal cohabitation, contact us or order the FREE checklist for your cohabitation agreement via our Wanted shop!

Would you rather draw up an actual cohabitation agreement?

In our shop you can purchase a full cohabitation contract for an actual cohabitation. To fill in our smart model documents, you will be guided with a detailed manual and a simple Q&A.

Laad hier uw gratis checklist op!

Disclaimer

De informatie over juridische onderwerpen die u in deze bijdrage aantreft, zijn louter informatieve, algemene besprekingen en kunnen in geen geval als juridisch advies worden beschouwd. Wanted Law aanvaardt geen aansprakelijkheid voor enige schade die iemand zou lijden door voort te gaan op deze informatie. Als u juridisch advies wenst, dient u contact op te nemen met een gekwalificeerde advocaat die u zal adviseren op basis van uw persoonlijke situatie. Alle blogberichten gepubliceerd op de website van Wanted Law zijn geschreven met toepassing van het Belgisch Recht.

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