Buying together in Belgium: married, cohabiting, joint ownership

Who becomes owner of what

Unmarried couple: joint ownership

Two unmarried people who buy together each become owner of a part of the property. Notaire.be speaks of joint ownership (indivision / onverdeeldheid): ownership is divided “in a mathematical and abstract way”. This part is the share (quote-part): 50/50, 70/30, according to what is written in the deed. This division appears in the deed: discuss it with the notary before you sign.

Married under the statutory regime

Notaire.be explains that the house then automatically falls into the common estate. Clauses can be added, for example so that the house passes entirely, in full ownership, to the surviving spouse.

Married under separation of property

The house is in joint ownership, as for legal cohabitants. The clauses designed for a common estate are not possible in this case.

Buying before getting married

Since 1 September 2018, unmarried buyers can declare an advance contribution (apport anticipé) in the purchase deed. If they marry later, the property becomes common simply through the marriage, without a marriage contract. The conditions: buying full ownership of a property, in joint ownership, in equal shares, and only between the two partners. If you want additional protective clauses, a marriage contract is still needed.

The loan: joint and several for the whole amount

Wikifin sums it up as follows: “each co-borrower is liable for repayment of the whole amount borrowed”. If one can no longer pay, the other may sometimes have to bear the monthly instalments alone. This applies to all three forms of union. Consider mortgage life insurance (assurance solde restant dû / schuldsaldoverzekering) to cover the death of one of you, and check what you can borrow together with your borrowing capacity.

Protections by situation

According to Wikifin:

• married couples and legal cohabitants benefit from the protection of the family home. One spouse cannot sell or let the family home alone without the other’s consent;
• de facto cohabitants: “there is no protection of the family home”. On death, the deceased’s share goes to their legal heirs, who can ask for the property to be sold. Without action at the notary’s, the survivor inherits nothing.

The accrual clause (tontine)

This is an agreement between two or more people who buy together: the share of the first to die passes to the survivor. What Wikifin and notaire.be say:

• it is an aleatory contract: registration duties (droits d’enregistrement / registratiebelasting) are paid on the deceased’s share (not inheritance tax). The 2018 notaire.be article cites 12.5% for Wallonia and Brussels: check the current rate with the notary;
• it can cover full ownership, usufruct or bare ownership, and it can be optional: the survivor decides on the death whether to apply it;
• if the chances of survival are unequal (a large age gap), it can be requalified as a gift;
• it can be ended only with the consent of all the parties: never by one alone;
• notaire.be advises providing a way out in the event of a dispute and limiting the clause in time;
• the balance of the loan remains due: if it is not repaid or covered by insurance, the survivor may have to bear the deceased’s share of the loan alone.

For legal cohabitants, the survivor automatically receives the usufruct of the family home and is exempt from inheritance tax on that home, like a spouse. The clause is therefore less useful, except to acquire full ownership or for another property (second home, property to let). See also gifting property.

On separation

Notaire.be presents several ways out in a divorce by mutual consent:

• one spouse takes over the other’s share and pays them consideration (the loan must also be settled, with the bank’s agreement);
• both remain in joint ownership with a joint ownership agreement (pacte d’indivision), which can bind them for 5 years at most, renewable;
• selling the property and dividing the price according to the agreed key.

If the spouses do not agree, the court can order a judicial division (liquidation-partage).

The division incurs a partition duty (droit de partage), known as the “misery tax” (taxe de la misère). According to a notaire.be page (undated, with no Region specified), it amounts to 2.5% of the agreed value for de facto cohabitants and 1% for spouses and legal cohabitants. For the latter, the same page requires the legal cohabitation to have lasted at least one year and the division to take place within 3 years. In Brussels, be.brussels gives 1% (see selling a jointly owned property): the rate depends on the Region, so have the notary confirm it. After a separation, also review your insurance policies (life, fire) and your will.

For de facto cohabitants, separation is settled without a divorce, but the same questions arise: who keeps the property, who repays the loan, what consideration. Ask the notary these questions when you buy, not when you break up.

Which professional to consult

The notary is the right starting point: they draft the accrual clause, the advance contribution, the joint ownership agreement and the marriage contract. A credit broker compares loan offers for two borrowers (mortgage credit broker). Wikifin recommends consulting a notary whatever the nature of your union.