You are currently married and you wish 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 with regard to signing a credit agreement?
Can I sign a consumer credit or a mortgage credit alone or do I have to sign with my husband or my wife? The point on these important questions which essentially concern the choice of your secondary matrimonial regime
Some notions about matrimonial property regimes
The matrimonial property regime is a set of rights and obligations which will govern the personal and property relations of the spouses between themselves and the spouses vis-à-vis third parties, in particular with regard to financial commitments.
The law distinguishes between the primary plan and the secondary plan:
The primary matrimonial property regime
This regime is provided for by law in the Civil Code and applies automatically and imperatively to all couples married in Belgium. It is therefore impossible to depart from it. The primary system essentially aims to define the rights and duties of the spouses among themselves as well as to ensure the protection of the family’s main accommodation.
The secondary matrimonial property regime
This system organizes relations between spouses and third parties, in particular from the point of view of financial commitments. A distinction is made between the legal regime and the conventional regime.
The legal regime is the community regime. In this system, the spouses remain the owners in their own right of the property and assets they possessed before their marriage. On the other hand, all property acquired during the marriage is presumed to be common unless declared otherwise by the spouses. Likewise, property received by succession remains in its own property as well as that made by declaration of re-use following the sale of its 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 derogating from this legal regime by adapting another form of secondary matrimonial regime during their marriage contract: example: the regime of the separation of property or the regime of the community reduced to assets.
The application of matrimonial property regimes to consumer credit
The primary diet
The primary regime defines some imperative principles:
- Each of the spouses contributes to the expenses of the marriage according to their faculties;
- Any debt contracted by a spouse for the need of the household and the education of the children is common and commits jointly the two spouses on the whole of their inheritances.
The legal secondary regime known as the “Legal Community”
In this regime, there are three heritages:
- The husband’s own heritage;
- The wife’s own heritage;
- The common heritage of the spouses.
Each of the spouses manages their own property alone, except for the own building allocated to the family’s main accommodation (the owner spouse must have the agreement of his spouse);
The common patromine responds to the principle of concurrent management, that is to say that each of the spouses can perform an act alone and perform all the management actions. However, the debts contracted by each of the spouses in the interest of the family are common and they involve the three heritages.
There are exceptions to the principle of concurrent management: certain particularly important acts of management require the signature of both spouses:
- Take out consumer credit;
- An installment purchase;
- The purchase, sale, mortgage of a building;
- The assignment, the pledge, the lifting, the reception of the reimbursement of a mortgage debt
In summary with regard to the legal regime
- Each spouse can do the acts of daily life performed for the needs of the household or the education of the children. thus, a spouse can contract alone a credit intended for the need for the household and the education of the children;
- In practice, however, institutions and credit companies will require the signature of both spouses;
- In any case, the debt is common and recoverable from all the assets;
- In terms of consumer credit, installment purchase, mortgage credit: joint signature is required without possible exemption.
The conventional secondary regime for the separation of goods
In principle, each spouse can act alone for the management of their own heritage. On the other hand, all the establishments and the credit companies will require the signature of the two spouses to avoid later discussions as to the character of the debt intended or not for the need of the household and the education of the children.