Naar een Minimale Vermogensrechtelijke Bescherming Voor Samenwonenden (Towards a Minimum Property Protection for Unmarried Cohabitants)

Abstract

This presentation is the backbone of a lecture I gave on March 25, 2011, in Brussels, at the Belgian Federal Parliament at a conference organized by the Christian Democratic Party on the Reform of Inheritance Law. It is based on research of the last ten years. In the presentation, five publications that serve as the basis for the reasoning are mentioned. Most of them are also freely downloadable at my SSRN author page.I argue that Belgian Law should introduce a minimum mandatory system of equal participation in relational gains (with some equitable correction in plus or in minus for exceptional cases). Relational gains are assets acquired during the relation through labor or substitute income. It does not include premarital or prerelational property nor family property acquired through inheritance, will or donation. Such property has no connection with the relation whatsoever. The relational gains on the contrary are directly linked to the couple's relationship.The justification for such mandatory scheme is the joint venture or partnership model of modern marriage and intimate conjugal unmarried relationships that mus find a fair balance between each partner's autonomy and the solidarity of their relationship.Hence, marital property law should be replaced by a more general and uniform relational property law.The argument goes that imperative or mandatory rules should be removed from the level of inheritance law (surviving spouse forced heirship) and put at an earlier stage of partner property law. Therefore, marital contracts of pure and simple separation of property should be corrected through this imperative participation entitlement. Furthermore I argue that the traditional choice argument to reject a discrimination between married and unmarried couples does not convince. The choice is not limited to mere words but should be analysed based on the reality of the partners life: their deeds and behavior. Therefore, I state that there is a turning point where the unmarried cohabitation is so similar to married life that it should be treated equally. Different firm criteria may be developed for determining such turning point.Finally, in terms of inheritance law, I argue that such rules should also be equally applicable to all conjugal relations. The argument of the relational gains does apply here too. Intestate inheritance law for spouses (and all conjugal partners) should differentiate between the relational gains (all of them in full property going to the surviving partner) and prerelational and family property (maximum in usufruct for the surviving partner). As explained, since the mandatory scheme has been transferred to the earlier property level, there is no need for forced heirship rules for surviving spouses or partners. This is not to say there should be no imperative inheritance law at all. Claims based on need or contribution towards the inheritance may be entered by the surviving spouse, a mechanism comparable to the English family provision.