Can I sign a consumer credit or a mortgage alone, or am I required to sign with my spouse? Let’s look at these important questions that mainly depend on your secondary matrimonial regime choice.
Some notions about matrimonial regimes
The matrimonial regime is a set of rights and obligations that governs the personal and property relations between spouses and between spouses and third parties, especially regarding financial commitments.
The law distinguishes between the primary regime and the secondary regime:
The primary matrimonial regime
This regime is provided 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 mainly aims to define the rights and duties of the spouses between themselves and to ensure the protection of the family’s main residence.
The secondary matrimonial regime
This regime organizes the relations between spouses and third parties, particularly from a financial commitments perspective. We distinguish between the legal regime and the conventional regime.
The legal regime is the community regime. In this regime, spouses remain the sole owners of the assets and possessions they owned before their marriage. However, all assets acquired during the marriage are presumed to be common unless declared otherwise by the spouses. Similarly, assets received by inheritance remain personal, as do those made by reinvestment declaration following the sale of a personal asset. In the absence of a secondary matrimonial regime chosen by the spouses in a marriage contract, this regime will automatically apply to the spouses.
Spouses also have the option to deviate from this legal regime by adopting another form of secondary matrimonial regime in their marriage contract: for example, the separation of property regime or the community reduced to acquests regime.
The application of matrimonial regimes to consumer credit
The primary regime
The primary regime defines some imperative principles:
- Each spouse contributes to the marriage expenses according to their abilities;
- Any debt contracted by a spouse for household needs and children’s education is common and jointly binds both spouses on all their assets.
The legal secondary regime known as the “Legal Community”
In this regime, three assets are distinguished:
- The husband’s personal assets;
- The wife’s personal assets;
- The spouses’ common assets.
Each spouse manages their personal assets alone except for the personal property used as the family’s main residence (the owning spouse must have their partner’s consent);
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The common assets adhere to the principle of concurrent management, meaning each spouse can act alone and perform all management acts. However, debts contracted by each spouse in the family’s interest are common and bind all three assets.
There are exceptions to the principle of concurrent management: certain particularly important management acts require the signature of both spouses:
- Taking out a consumer credit;
- An installment purchase;
- The purchase, sale, or mortgage of a property;
- The assignment, pledge, release, or receipt of repayment of a mortgage claim
In summary regarding the legal regime
- Each spouse can perform alone the everyday acts for household needs or children’s education. Thus, a spouse can take out a credit alone for household needs and children’s education;
- In practice, however, institutions and credit companies will require the signature of both spouses;
- In any case, the debt is common and recoverable on all assets;
- In terms of consumer credit, installment purchase, mortgage: joint signature is required without possible derogation.
The conventional secondary regime of separation of property
In principle, each spouse can act alone for the management of their personal assets. However, all institutions and credit companies will require the signature of both spouses to avoid later discussions about whether the debt was intended for household needs and children’s education.
For more information, we invite you to contact our brokers.
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