Under Belgian law, a marriage contract is expressly authorized by law as a formal deed in which a future husband and wife set out any terms of their marriage as they see fit, but within the confines of the legal rules.
They may not deviate from the rules governing public order and common decency, from the rules setting out the respective rights and duties of the husband and wife, or the rules on managing the communal estate and assets. The contact must be drawn up prior to marriage by a Belgian notary.
Either party who is unable to attend may be represented by a proxy by means of a special power of attorney executed before a notary. The notary has a duty to be objective as well as having the duty to fully inform the parties regarding the terms and consequences of the agreement. The notary may be liable for damages if the agreement is unbalanced or if there may be a conflict of interests. The marriage certificate must provide the following information: the date of the contract, the name and address of the notary who drew up the contract, and the type of marriage contract. Failing this, any clauses derogating from the statutory system may not be applied to third parties who engaged in contractual relationships with the husband and wife without knowledge of their marriage contract. There is no requirement to disclose assets as to a premarital agreement, but one spouse may request disclosure of all movable and immovable property, as well as all debts, of the other spouse for a post-marital agreement that overrides a previous contract pursuant to the Belgian Civil Code, Article 1394, paragraph 2.
Any transfer of real estate in connection with a marriage contract must be registered with the mortgage registration office. All marriage contracts must be registered with the Central Register of Marriage Contracts. If an agreement deviates from the proportional distribution rule or provides for the appointment of an heir, it must also be registered with the Central Register of Last Wills and Testaments. If one spouse is a merchant, within one month after the marriage contract is drawn up, the marriage certificate must be sent to the clerk of the Commercial Court in whose jurisdiction the spouse in question is listed in the trade register. If there is no marriage contract, the spouses are governed by the statutory prenuptial system. The husband and wife may change their marriage contract during their marriage.
Our office has worked on several U.S. – Belgium prenuptial agreements, always collaborating with local counsel in all jurisdictions as appropriate.
Disclaimer: We are admitted to practice only in New York but work as appropriate with lawyers throughout all U.S. states and throughout the world.