You are currently married and you would like to take out a consumer loan or a mortgage loan. Perhaps you would like to take out a loan alone or together. What are your rights and obligations when signing a credit contract?
Can I sign a consumer loan or mortgage loan alone or on the contrary am I obliged to sign with my husband or wife? An update on these important questions which essentially relate to the choice of your secondary matrimonial regime
Some notions about matrimonial regimes
The matrimonial regime is a set of rights and obligations which will govern the personal and property relations of the spouses with each other and of the spouses with regard to third parties, particularly in terms of financial commitments.
The law distinguishes between the primary regime and the secondary regime:
The primary matrimonial regime
This regime is provided for by law in the Civil Code and applies automatically and imperatively to all married couples in Belgium. It is therefore impossible to deviate from it. The primary regime essentially aims to define the rights and duties of spouses between themselves as well as to ensure the protection of the family’s main home.
The secondary matrimonial regime
This regime organizes the relationships between spouses and third parties, particularly from the point of view of financial commitments. We distinguish between the legal regime and the conventional regime.
The legal regime is the community regime. In this regime, the spouses remain the sole owners of the property and assets that they owned before their marriage. On the other hand, all property acquired during the marriage is presumed to be common unless the spouses declare otherwise. Likewise, goods received by inheritance remain owned as well as those made by declaration of re-employment following the sale of own property. In the absence of a secondary matrimonial regime chosen by the spouses during a marriage contract, it is this regime which will automatically apply to the spouses.
The spouses also have the possibility of deviating from this legal regime by adapting another form of secondary matrimonial regime during their marriage contract: example: the regime of separation of property or the regime of community reduced to acquets.
The application of matrimonial regimes to consumer credit
The primary regime
The primary regime defines some imperative principles:
- Each of the spouses contributes to the expenses of the marriage according to their abilities;
- Any debt contracted by a spouse for household needs and the education of children is common and jointly binds both spouses for all of their assets.
The legal secondary regime known as the “Legal Community”
In this regime, we distinguish three assets:
- The husband’s own assets;
- The wife’s own assets;
- The joint assets of the spouses.
Each of the spouses manages their own assets alone except with regard to the own building assigned to the family’s main residence (the owner spouse must have the agreement of his or her spouse);
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Common property meets the principle of concurrent management, that is to say that each of the spouses can carry out an act alone and carry out all management acts. However, the debts contracted by each spouse in the interest of the family are common and they involve all three assets.
There are exceptions to the principle of concurrent management: certain particularly important management acts require the signature of both spouses:
- Take out a consumer loan;
- An installment purchase;
- The purchase, sale, mortgage of a building;
- The assignment, pledging, lifting, receipt of repayment of a mortgage debt
In summary regarding the legal regime
- Each spouse can carry out daily activities alone for the needs of the household or the education of the children. thus, a spouse can take out a loan alone intended for household needs and the education of the children;
- In practice, however, credit institutions and companies will require the signature of both spouses;
- In any case, the debt is common and recoverable across all assets;
- In terms of consumer credit, installment purchases, mortgage credit: joint signature is required with no exemption possible.
The conventional secondary regime for the separation of property
In principle, each spouse can act alone for the management of their own assets. On the other hand, all establishments and credit companies will require the signature of both spouses to avoid subsequent discussions regarding the nature of the debt intended or not for the needs of the household and the education of the children.
For more information, we invite you to contact our brokers.
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