When does liquidation and division take place?
- After a divorce (mutual consent or contested)
- After the death of a spouse (inheritance + liquidation of the matrimonial property regime)
- After the breakdown of a legal or de facto cohabitation with jointly owned assets
The third case presupposes that the legal cohabitation has ended, and it does not end of its own accord. Article 1476, § 2, of the former Civil Code lists three causes for this: the cohabitants' marriage, the death of one of them, and a written declaration handed over against a receipt to the registrar of civil status. That declaration may come from both cohabitants or from only one.
The same text fixes the precise moment: legal cohabitation ends at the moment the declaration is entered in the population register. What brings it to an end is therefore neither the physical separation nor the move, but the entry in the population register.
A unilateral declaration carries a formality worth knowing in advance: the registrar serves it on the other cohabitant within eight days, by bailiff's writ, and the costs of that service must be paid in advance by the person making the declaration (former Civil Code, art. 1476, § 2).
This formality exists for legal cohabitation alone. In the three cases listed above, the question that opens next is always the same one: that of the property still held by two people.
Stages of liquidation and division
1. Inventory of assets (movables, real estate, accounts, claims, debts)
2. Classification: own assets / common assets / jointly held assets
3. Valuation (estimate, sometimes a court-ordered expert appraisal, a property appraisal when the asset is real estate)
4. Calculation of compensations: compensations due between spouses for movements between estates (e.g. own money invested in common asset)
5. Actual division: attribution of assets to one or the other, with possible balancing payment
6. Notarial deed or judgment ratifying the division
Frequent disputes
- Valuation of the family home
- Treatment of debts contracted by one spouse alone
- Compensations due to the common estate
- Own contributions when purchasing a common asset
- Gifts between spouses to be revoked or not
These five disputes do not all rest on the same basis. Valuing the family home may lead to the expert appraisal that article 1213, § 1, of the Judicial Code entrusts to one or more experts appointed by the court. Compensations owed to the common estate and separate contributions, by contrast, are governed by article 2.3.44 of the Civil Code.
Hence a practical rule: these discussions are won on evidence before they are won on argument, and the evidence is built up during the marriage, not at the moment of the break-up.
Amicable vs judicial liquidation
- Amicable: by notarial deed, faster and less costly
- Judicial: before the Family Court with appointment of a notary-liquidator, in case of persistent disagreement
The Judicial Code nowhere defines amicable division: it takes it for granted and governs only the other branch. Article 1207 refers the matter to the family court only where not all the co-owners consent to an amicable division.
The condition for entering the judicial route is therefore disagreement, and nothing else. Neither the nature of the assets, nor their value, nor the form of the divorce determines it.
How Sarah Satti can help you
- Preliminary assessment of your asset situation
- Amicable negotiation with the other party
- Representation in case of judicial liquidation
- Follow-up of the notary-liquidator
- Defence of your interests in disputes (compensations, occupation indemnities, asset values)
Most of it is settled before the first figure is put forward. Title deeds, loan agreements and repayment schedules, account statements covering the period of the marriage, proof of the origin of the funds used for a purchase: these are the documents that make it possible to say which estate an asset belongs to, and what one estate owes the other.
That is where the lawyer's work begins. It consists first in drawing up the list of what is missing, and then in having it completed while the documents can still be obtained.
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When is it necessary to liquidate and divide?
Liquidation and division arise whenever an estate held by more than one person must be unwound: after a divorce, after the death of a spouse, after the end of a cohabitation. Article 1207 of the Judicial Code sets out the framework.
Agreement is not required to begin. The text places the initiative with the most diligent party: whoever wants to move forward applies to the family court alone. The other side's inaction is therefore no obstacle.
The procedure is moreover open even without co-ownership, where the claim concerns only a liquidation: that of a matrimonial regime, that of a succession, or the drawing up of accounts between legal cohabitants.
Amicable or judicial
An amicable division is done by notarial deed, without litigation. A judicial division becomes necessary where not all co-owners consent to the amicable route. The two routes are not sealed off from each other, however: the judicial route leaves full room for agreement, and every agreement reached along the way shortens the procedure.
The Judicial Code gives the liquidating notary a conciliation role from the outset, and provides that at any stage of the procedure an agreement (global or partial) may be recorded. Once signed, that agreement binds the parties definitively. Agreements recorded by the court itself have the value of the judgments referred to in article 1043 of the Judicial Code.
It thus happens that judicial proceedings end on successive agreements, with no court ruling on the merits. Every point settled along the way leaves the debate for good, and shortens what is left accordingly.
The liquidating notary
The liquidating notary is appointed by the court. If the parties agree on a name, that notary is appointed; they may even jointly request the appointment of two notaries. Failing agreement, the court appoints another itself.
The liquidating notary is nobody's lawyer. The notary conducts the operations impartially, and the law requires them to inform the parties that they may be assisted by a lawyer. Where circumstances give rise to legitimate doubts about their impartiality, replacement may be sought.
The division of roles follows. The notary draws up the deeds and records the facts; the lawyer argues a position, by classifying an asset as separate rather than common, by quantifying a compensation, by challenging a valuation, by seeking attribution of the home, or by checking that the liquidation statement has not overlooked a common debt.
The course of the operations and their time limits
Operations open at the request of the most diligent party. From the opening, the liquidating notary sets the timetable with the parties. If no timetable is agreed, the law supplies one.
The parties then have two months to communicate their claims and documents, both to the notary and to the other parties. That period runs from the closing of the inventory or, failing one, from communication of the opening report; where an expert is appointed, a two-month period also applies. The notary then has two months to send each party an overview of the claims received.
These periods are not indicative: a claim communicated too late risks no longer being taken into account. The Judicial Code also organises what happens when the procedure stalls. Failing an agreed timetable, the court may, at the request of a party or of the liquidating notary, shorten those periods in the light of the features of the case. And where the liquidating notary does not act within the agreed or statutory periods, any party may, by simple letter to the court that appointed the notary, ask for the notary and the parties to be convened: the judge hears them, settles with the notary the timetable for the rest of the operations and rules on the notary's replacement, which cannot however be ordered if all the parties oppose it.
Before closure, each party may still raise objections to the liquidation statement. That is the stage at which a challenge is made.
Who keeps the home?
The Civil Code calls this mechanism preferential attribution. It allows one of the spouses to receive, as a priority, the family home, the furnishings it contains and the assets serving their professional activity, against payment of a balancing sum where appropriate.
The request is made during the liquidation operations. The court then weighs the interests at stake and expressly measures the financial capacity of the party who will have to pay the balancing sum. The law lays down a separate rule for the spouse who has been the victim of an act covered by article 2.3.14, § 2, second paragraph, of the Civil Code, which refers to an exhaustive list of offences under the Criminal Code: where the other spouse has been found guilty of it, as perpetrator or participant, by a decision having the force of res judicata, that request for the family home, its furnishings and the professional assets is granted, save in exceptional circumstances.
The same mechanism exists where the regime ends through death.
There remains the loan that financed the home. Where a mortgage loan has been taken out by two co-borrowers, the undertaking by one of the former spouses to bear the repayments alone is not sufficient, in itself, to release the other co-borrower as regards the bank. Book 5 of the Civil Code governs, among other things, the transfer of debt and the internal assumption of debt (articles 5.187 to 5.192), but their application depends on the specific situation. The release of a co-borrower presupposes the involvement of the bank. The guarantees, such as the mortgage or the surety, must also be examined.
When an ex refuses to sell
It happens that a former spouse refuses at once to sell, to buy out and to leave the property. The law then provides several routes.
Article 3.75 of the Civil Code provides that each co-owner may demand division at any time. Nobody is required to remain in co-ownership.
Acts of disposal over jointly held property require the agreement of all, but article 3.73 makes an exception where the judge considers that a refusal would constitute an abuse of right. A refusal whose only purpose is to block can therefore be overcome.
A property cannot always be conveniently divided in kind. Where that follows from the agreement of all, or from the liquidating notary's opinion, supported if need be by an expert's report, the notary draws up the conditions for a public sale, unless every party consents to a sale by private agreement.
Compensations between the estates
A compensation is an indemnity owed between the estates, and it works both ways. It is owed for sums taken from the common estate to discharge a separate debt and, generally, whenever a spouse has drawn a personal benefit from the common estate. Conversely, separate funds invested in common property give rise to compensation in favour of the separate estate.
A spouse practising within a company whose shares are their separate property owes the common estate compensation for the net professional income it did not receive and could reasonably have received. That rule concerns the self-employed first of all.
The law also sets a floor: compensation may not be less than the impoverishment of the creditor estate.
Compensation is settled within the division itself. The party owing it discharges it by taking less or by payment into the estate; the party entitled to it draws property of equal value from the estate. Only after that settlement, and that of the common debts, is what remains divided in half.
Co-ownership that lasts
Co-ownership can drag on for years, without the property being sold, bought out or divided.
Each co-owner may demand division at any time. Nobody remains a co-owner against their will. The only limit is an agreement by which the co-owners accepted to suspend division for a fixed period.
For as long as the co-ownership lasts, shares are presumed equal, unless proven otherwise, which matters where one party paid more. Each contributes to the charges in proportion to their share. And each has the right to use and enjoy the property, provided that this use and enjoyment does not exceed their proportional share.
It is from this last rule that the occupation indemnity derives. A co-owner who has had the exclusive enjoyment of the jointly held property exceeds their proportional share and must indemnify the other co-owners (Civil Code, arts. 3.69, 3.71 and 3.74; Cass., 24 November 2016, C.16.0026.F). That indemnity accrues to the undivided estate, where it is taken into account on division.
The amount itself is in no way automatic. The Court of Cassation held that it does not follow from those rules that the former spouse occupying the common property after the dissolution of the matrimonial community of property owes the other, whatever the circumstances of the case, an indemnity equal to half the rental value (Cass., 24 November 2016, C.16.0026.F). The amount is assessed according to the circumstances of the case, among them the care of the children. That ruling was delivered on former article 577-2 of the Civil Code, repealed on 1 September 2021; the same rules are now found in articles 3.69 and 3.71 of the Civil Code.
The principle was drawn by the courts from those provisions, which do not name the indemnity: its application depends on the circumstances of each case, and it is open to argument.
What a division costs
A division has a cost, made up of distinct items.
The division duty. A division of immovable property gives rise to a registration duty known as the division duty. The same duty falls on transfers for value, between co-owners, of undivided shares in immovable property. Registration duties being a regional matter, the rate differs according to the region in which the property is located. In the Brussels-Capital Region that rate is 1%.
What the duty is calculated on. That depends on the effect of the deed. Where the deed ends the co-ownership between all co-owners, the duty is assessed on the total value of the property: someone taking over half a house therefore pays not on half its value, but on its full value. Where the deed does not end it between all, the duty is assessed on the value of the shares transferred. In both cases the base is the value agreed in the deed, which may not be lower than the market value. And where a third party enters the co-ownership, the transaction is taxed at the rate for transfers for value, not at the division duty rate.
The court registration duty. It is owed to the State for the entry of the case on the roll of the court of first instance, of which the family court is a division. The Registration Duties Code governs the duty. Before the court of first instance that duty amounts to 165 euros, other levels of jurisdiction carrying different amounts. It is not paid when the application is filed: it becomes payable on the date on which payment is ordered, in the final decision of the court.
The notary's fees. The notary's fees are set by royal decree, under a degressive tariff. It follows that the notary's fees depend neither on the notary chosen nor on the time spent, and that they are not negotiable. But the tariffed fee does not cover everything: to it are added disbursements, that is the sums due to third parties which the notary advances on your behalf, and the notary's administrative charges, called vacations in the Belgian tariff. The notary must set out those items in detail in the final account. The fixed amounts in the tariff are adjusted every two years in line with the consumer price index, so only that final account gives the figures that apply to your case. VAT is added on top.
Expert's fees. They are due where an expert is appointed to value a property. In civil matters the amount is taxed by the judge, and the law frames both its calculation and its review. The judicial expert must inform the judge and the parties of the method of calculating their costs and fees at the start of the work, and the detailed statement sets out separately the hourly rate, travel costs, subsistence costs, general costs and the amounts paid to third parties. The judge may fix a provision to be deposited, and it is the judge who taxes that statement, taking account above all of the care with which the work was carried out, compliance with the periods set and the quality of the work supplied, and where applicable of the difficulty and duration of that work, the expert's standing and the value of the dispute. Those amounts are then taxed as legal costs in the final decision (Judicial Code, art. 987, 990 and 991; royal decree of 25 April 2017 establishing the code of ethics of judicial experts, art. 9).
The law fixes the sharing of the costs of liquidation and division: unless otherwise agreed, each spouse bears half of them.
The procedural indemnity. Where the division is judicial, the final decision also rules on the procedural indemnity, a lump-sum contribution towards a lawyer's costs and fees provided for by the Judicial Code. Its amount depends on what is at stake in the dispute. A royal decree sets the scale, with a minimum amount and a maximum amount between which the judge may adjust it. That scale is index-linked, and the exact figure is assessed on the day of the decision.
Not all of these items arise in every case; which ones apply to yours depends on the route followed.
Legal cohabitants and de facto cohabitants
Unmarried couples are not left without a framework, but their situation does not fall under the same texts depending on whether they were legal cohabitants or de facto cohabitants.
Judicial division is open to both. Article 1207, first paragraph, of the Judicial Code covers any co-ownership, with no condition as to status: where not all co-owners consent to an amicable division, division takes place judicially before the family court, at the request of the most diligent party. Two unmarried people who own property together therefore have access to it.
What is specific to legal cohabitants is something else. The second paragraph, 3°, allows the court to be seised of the mere drawing up of accounts, even absent co-ownership. That is an extension of the procedure, not the condition for access to it.
De facto cohabitants who bought property together are in fortuitous co-ownership: each is an owner without being able to claim a specific part of the property. Shares are presumed equal unless proven otherwise, which matters where one party financed more. Within that fortuitous co-ownership, each may demand division at any time.
That right to demand division at any time holds, however, only for fortuitous co-ownership. Where the co-ownership was organised by contract (so-called voluntary co-ownership), article 3.75 does not apply: the way out is then governed by the contract and, where the co-ownership is of indefinite duration, by termination on reasonable notice. Before concluding that one may leave at will, the deed of purchase and what it provides must be read.
The accounts to be drawn up between former de facto cohabitants (repayments, contributions, mutual claims) depend on each party's situation, and that is a point to be examined case by case.
