Separate property remains separate, even in community regimes
Spouses who marry without a marriage contract, or who do not opt for separation of property in such a contract, fall under the statutory regime. In this regime, professional income is communal. What remains at the end of the marriage, whether through divorce or death, is in principle divided equally between the spouses.
This differs for assets already owned at the time of marriage or acquired during the marriage through, for example, a gift or inheritance. These assets, including any increase in value during the marriage, belong to the separate property of the relevant spouse and are not subject to division. The owning spouse simply retains them. However, dividends distributed from a privately owned company do fall within the community, as the statutory regime is a community of acquisitions resulting from labour and capital.
Piercing the corporate veil
A spouse who already owns a company at the start of the marriage, or who sets one up during the marriage using their own funds, will hold shares that form part of their separate property. Without any involvement from the other spouse, they may, for example, vote alone at the general meeting.
Such broad decision-making power may conflict with the fundamental principle of the statutory regime, namely that professional income is communal. By retaining full control, the shareholder spouse can decide alone whether income will flow to the community through dividends or remuneration. They may, for instance, pay themselves only a minimum salary and retain the rest of the profits. The community would then have received more income if the activity had not been carried out through a company.
The legislator intervened in 2018 on this point. A spouse who carries out their professional activity within a company whose shares belong to their separate property must now justify the retention of profits on economic grounds. If they fail to do so, compensation is due to the community. The community is entitled to the net professional income that was not received but could reasonably have been received if the activity had not been carried out through a company. In other words, the corporate veil is pierced in favour of the community.
The legislator’s objective was clear: within a community regime, the manner in which a professional activity is carried out (as an employee, sole trader or through a company) must be neutral. The ultimate beneficiary of the fruits of labour should be the community, regardless of how the activity is structured.
The increase in value of separate shares must also be compensated
Since 1 September 2018, the corporate veil has thus been pierced for amounts retained in the company without economic justification, in the case of an entrepreneur married under a community regime and holding shares as separate property.
Separately, the question arises as to the increase in value of these shares when that increase results from professional efforts during the marriage: does it remain entirely separate, or must compensation also be paid?
This was precisely the question submitted to a court in Arlon.
In that case, spouses J.-L. D. and S.O. had worked during their marriage in a company whose shares belonged to the separate property of J.-L. D. After the company was established, S.O. became co-director. Both spouses received the same monthly remuneration.
The marriage ended in divorce, raising the question of whether the capital gain on J.-L. D.’s separate shares had to be shared with S.O.
Faced with the finding that the statutory compensation rule introduced in 2018 did not apply to this issue, the court referred several questions to the Constitutional Court, which were addressed in its judgment of 5 March 2026.
The Court was asked, among other things, whether there was discrimination between situations where the professional activity is carried out through a company whose shares are communal, and those where the shares are separate. In the former case, the capital gain is fully shared; in the latter, it remains separate and is not divided at the end of the marriage.
The Court leaves no doubt: there is no discrimination. The classification of shares as separate or communal simply entails the consequences inherent to the statutory regime.
Does this mean that S.O. is left empty-handed? Not at all. The Court recalls that income from labour is communal and must be shared. The use of a company cannot alter this principle. To reach this conclusion, the Court relied, among other things, on the objective of the 2018 reform.
Although the capital gain on the shares remains part of the separate property and is not subject to division, compensation is nevertheless due for the income that the community would have received if the professional activity had not been carried out through a company. This compensation in principle includes the capital gain generated on the shares as a result of the professional activity during the marriage, including, a fortiori, the part attributable to the work of the other spouse.
A justified principle, but some concerns
Generally speaking, the position of the Constitutional Court appears justified: compensation corresponding to the capital gain on separate shares is due where that gain is linked to professional activity carried out during the marriage.
However, certain questions remain.
First, it is unclear which part of the capital gain should not be subject to compensation. Indeed, much of what takes place within a company is, in one way or another, linked to professional activity.
- One may think of increases in value of real estate acquired within a company whose shares are separate property. If the acquisition was financed with professional income (possibly supplemented by credit), the increase in value of that property will likely have to be compensated, even if it arises partly by chance.
- The situation may differ for shares acquired by gift or inheritance. If the company already holds real estate at that time, that property is not linked to the professional activity of the spouse who received the shares. Its value and subsequent increases will affect the share value, but compensation to the community does not seem appropriate, as those assets were not acquired through labour.
Another issue is fairness. An entrepreneur may have taken on significant financial commitments before the marriage, including guarantees. While the community may benefit from the increase in value linked to the professional activity during the marriage, it does not necessarily bear the risks if the business fails.
Practical challenges in implementation
The implementation of this compensation also raises practical issues. It is separate from the rule introduced in 2018 concerning retained earnings. Applying both mechanisms together may lead to double compensation.
It will therefore be necessary to determine precisely which part of the capital gain has not already been covered by the compensation relating to retained earnings.
Company auditors and other valuation professionals will likely need to carry out detailed analyses to make this distinction.
A solution through a tailored marriage contract?
It is conceivable that an entrepreneur may still wish to marry under a community regime, given the solidarity it offers.
Is it still possible, in that case, to retain the increase in value of a privately owned company?
As the Constitutional Court noted in its judgment of 5 March 2026, a fundamental feature of community regimes is that professional income is communal. For that reason, fully excluding compensation does not appear possible.
However, it may be possible to contractually define how the compensation is calculated, for example by agreeing in advance on a valuation method in the marriage contract.
This nonetheless suggests that a separation of property regime remains more suitable for entrepreneurs, while still allowing for the inclusion of solidarity mechanisms.
We remain at your disposal for any questions regarding the above or the drafting of your marriage contract.
