5 What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
Under the statutory matrimonial property regime, after divorce each spouse retains his/her separate property. The joint property is divided equally between the spouses.
If the community of property regime has been chosen and nothing else has been stipulated, in case of divorce the community property, after deduction of debts, is equally divided between the spouses (Art. 137 CC).
If the marriage contract provides for the separation of property regime, there is no division of property in case of divorce. Each of the spouses retains the property which belonged to him/her before the marriage, as well as the property which he/she acquired during the marriage (Art. 117 CC).
The spouses may sign an agreement before a civil law notary or conclude a private contract on the division of property. Such an agreement may be signed only during the marriage. If the spouses do not reach an agreement, then the dispute shall be brought to the court in the form of a claim.
5.2. Who is liable for existing debts after the divorce/separation?
Debts are taken into account when dividing the property. The spouses may sign a contract on the division of common obligations. If there is a dispute, then it shall be brought to the court in the form of a claim.
5.3. Does one spouse have a claim to an equalisation payment?
During or after the dissolution of a marriage, a (former) spouse may claim support from the other (former) spouse commensurate to the means of the latter if the latter by his/her actions has contributed to the termination of the marriage and if the support is necessary to ensure the previous standard of living of the claiming spouse (Art. 81 CC).
If one spouse, while administering the property of the other spouse, has made necessary expenditures from his/her own property, then only upon the termination of such administration may he/she request from the other spouse reimbursement of these expenditures to the extent he/she himself/herself is not obliged to cover them (Art. 101 CC).
The claimant assesses his/her claim; in the case of a dispute an expert is involved. Furthermore, under the community of property regime, a spouse has to reimburse what he/she has spent from the community property for the benefit of his/her separate property. If a spouse has made expenditures out of his/her separate property for the benefit of the community property, he/she may require repayment from the community property (Art. 138 CC).
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