Why you should never marry in community of property as an entrepreneur

By Martine Gunter

If you marry and make no arrangements, you marry in a limited community of property. Assets and debts that you already have at the start of the marriage remain private after the marriage. Just like inheritances and gifts that the partners receive during the marriage. The limited community therefore has three assets: the private assets of the respective spouses and a common asset. Only what the spouses build up together during the marriage falls into the community.

For entrepreneurs with a sole proprietorship or partnership (vof, maatschap) it is often clear that it is very important not to marry in community. If no prenuptial agreement has been entered into, his or her partner is not (fully) protected against the entrepreneurial risk. Even if the private assets of the other partner are outside the community. During the marriage, the partners will build up assets through the efforts of both spouses and the creditors of the sole proprietorship will be able to recover from this. This alone is a reason to draw up prenuptial agreements.

However, a director-majority shareholder of a BV would also be wise to visit a notary before getting married. The fact that the shares he has in the BV remain private after the marriage does not mean that his company will be completely disregarded in the event of a divorce.

The starting point of the limited community system is – as stated – that what is earned during the marriage falls within the community and must be shared. That is why the law stipulates that a business that falls outside the community owes a ‘reasonable compensation’ to that community. So that the result of the business that can be attributed to the efforts of one partner is shared with the other partner during the years of marriage. The idea is that if the partner had had a regular job as an employee, his salary would also have fallen within the community.

Therefore, in the event of divorce, it must be assessed whether there was reasonable compensation during the marriage for the knowledge, skills and labour used for the business. If this was not the case, then a settlement must still be made: the saved income that is present in the business (has been saved) must be settled.

The legislator is not clear about the question of what should be understood by a 'reasonable compensation'. It is an open standard. The right to compensation is variable and depends on the specific circumstances. It is linked to what can be attributed to the knowledge, skills and labour used by the entrepreneur, whereby the increase in value of the shares (BV) during the marriage can also play a role.

So even if your business is not part of the community, it may still be the case that in the event of divorce, a settlement must be made with the other spouse. Even if you as an entrepreneur have paid yourself a market-conform salary during the marriage.

In the case of divorce, the question is what is a reasonable compensation and whether this was met during the marriage. If the parties cannot reach an agreement, and in our experience (certainly with such an open standard) this is very often the case, then the judge must determine the compensation. A legal procedure is often very expensive and often takes a lot of time.

To prevent you as an entrepreneur from ending up in this uncertain situation in the event of a divorce, it is therefore wise to draw up a prenuptial agreement.