MPs, notaries examine pending changes to marriage, divorce laws

February 10, 2012 11:50 AM

PHILIPSBURG - Inheritances and gifts received by either spouse prior to marriage will not become part of the community property if a draft amendment to the Civil Code is passed by Parliament.

The draft is currently under discussion in a Central Committee hearing.

Notaries Association representatives gave their opinion on the draft change to Members of Parliament (MPs) on Thursday afternoon, explaining that it would make division of assets fairer for all parties involved, especially during a divorce, for instance.

Under the current rules, if there is no prenuptial agreement, spouses are each "entitled to a 50 per cent undivided share" in each other's assets, including any gifts or inheritance brought into the marriage. The change will exempt the division of any inheritance or gift, meaning the spouse who receives it will remain sole owner.

The Civil Code already was amended in 2001 to exempt inheritances and gifts received by either spouse during marriage. The notaries had recommended that the current pending change also be added to the Civil Code in 2001, but it was not taken up.

The process of divorce is also set to change.

Notaries Association President Henry Parisius explained that under the current system, the divorce decree by the court only becomes valid when it is registered in the Civil Registry. In the proposed amendment, once a divorce decree is given by the court, it is retroactive to the time the petition for divorce was filed. "The big advantage is that at moment you file that petition, all debts created by the other spouse are not for your account."

Additionally, if one spouse uses the assets of the other to acquire property or other assets that have increased in value at the time of a separation, the spouse whose money was used would have a claim on the appreciated property/assets, Parisius said.

Notary Candidate Lars de Vries said the changes also affected people with marital agreements, giving a scenario where one spouse owns the house, but over the years of marriage the other has contributed to the paying of the mortgage. At the time of a divorce, when an agreement is in place, the spouse who owns the house will keep it, while the one who contributed will receive only an amount based on the principal without consideration to interest paid.

In the discussions, National Alliance (NA) MP William Marlin queried how the situation of lottery winnings, for example, would be dealt with and whether this would be considered an inheritance or gift. The notaries said such winnings formed part of the community property and were not classified as gifts or inheritance.

De Vries explained that the draft amendments would give more rights to the spouse who raised the children and took care of the household, but did not earn an income.

Should spouses want to make a post-marital agreement to protect their property and assets, the creation of such an agreement will be left to the notaries under the pending amendments.

At present, the court is charged with deciding whether an agreement could be to the detriment of a third party (e.g. creditors). When the law is changed, the notaries will take on this guardianship.

(The Daily Herald)

10 February 2012