Waardig Familiaal Vermogensrecht (Dignified Family Property Law)

Abstract

In this article I present a consistent theory for reforming Belgian Family Property Law and adapting it to a modern 21st century society. This includes the plea for matrimonial property law to open up as relational property law for all intimate conjugal relationships that are durable (e.g. 5 years domiciled together). I also argue that contractual agreements creating inequitable results upon divorce or break up of the relationship should be voided through an imperative mechanism of participation for each spouse or partner in a 50/50 division in the marital or relational gains, i.e. goods acquired during the marriage or relationship through labor. Building on the disctinction between partner property, pre-matrimonial/relational property and family property from the blood family, I argue that imperative claims on one's property should be accepted only in proportion to a legitimate justification for such claim. For partner property the contribution of each partner to the marriage or relationship justifies a 50/50 claim. Hence I argue that imperative law should be moved from inheritance law (forced heirship of surviving spouse) to relational or matrimonial property law. For family property from the blood line it may be accepted that the respresentatives of the blood line such as the children of the deceased may claim a forced heirship on these assets as it is the blood line that created and contributed to these assets. This I call a transgenerational reserve. Finally on pre-marital goods only a claim based on need may be accepted.