In the event of separation or in the lead-up to a divorce, it is possible to reach amicable agreements on the division of joint (real property) assets and on the legal consequences of marriage. Such marriage contracts are called separation agreements, divorce agreements or divorce settlement agreements and generally require notarisation. A divorce settlement agreement can contain binding arrangements, for example, on the payment of maintenance after the marriage, on implementing the equalisation of pension benefit rights in the event of divorce and on the settlement of the matrimonial property regime and assets.
When are divorce agreements made?
Most divorce agreements are drawn up during the separation phase prior to the divorce proceedings. In some cases, the divorce proceedings are already pending in court, while in others, signing a notarised agreement is a condition for initiating divorce proceedings.
Is it necessary to involve lawyers?
Divorce settlement agreements are often initially negotiated between the lawyers of the separated spouses before the civil law notary is engaged. This is also advisable in contentious cases. In appropriate cases, it may be advisable to involve a mediator instead. And in cases where both parties have reached an agreement, it is also possible for only one spouse to be represented by a lawyer prior to the notarisation or for the spouses to approach the civil law notary directly. If you engage a civil law notary directly, however, please note that civil law notaries have expertise in the area of property settlement. However, we are not in a position to calculate maintenance claims or determine the equalisation value of pension rights.
Final settlement of financial affairs (full settlement)
As a rule, the divorce agreement should contain a final settlement of the legal relationship between the separated spouses. If there is real property, the divorce agreement is usually divided into two parts: one part contains provisions on the division of the property. If one spouse takes over the property, it is often necessary to make arrangements for the transfer of any loans and payment of the purchase price. The notary office then handles implementation of the agreement with the lender and the land registry. The other part of the divorce settlement agreement deals with the final settlement of matters relating to matrimonial law. The agreement often stipulates that all claims under a matrimonial property regime are settled upon transfer of the property and that separation of property applies from that time onwards. In addition, final arrangements can be made regarding pension rights acquired during the marriage (equalisation of pension benefit rights) and the payment of maintenance after the marriage. It may also contain arrangements regarding contact with the children and child maintenance.
Limits to freedom of contract
Just like precautionary marriage contracts, divorce agreements are subject to judicial review. It is also crucial in this case that marital obligations are not unfairly borne by one spouse. This may be the case if one spouse waives all their marital rights under a matrimonial property regime and it is already foreseeable that this spouse will be dependent on welfare benefits.