Solidariteit in aanwinstenstelsels

Upon entering into a marriage, the spouses' patrimonial situations are governed by a matrimonial property regime. Each regime established a distinctive degree of patrimonial solidarity between the spouses. Pure separation of property regimes aim to achieve a low degree of solidarity, while universal community property regimes exhibit a high degree of solidarity. Nevertheless, other regimes offer spouses a more balanced and fair degree of solidarity, that expresses the concept of marriage as a partnership between them. This is particularly the case for regimes that distribute the assets the spouses have obtained non-gratuitously during the marriage in a more or less equal manner upon divorce. Regimes that adhere to this characteristic may be classified as 'acquisitions regimes'. Nevertheless, these acquisitions regimes form a heterogeneous group. Both community regimes, which establish a community property from the outset of the marriage, and participation regimes, which adhere to a separation of property during the marriage, can achieve an equal distribution of the acquisitions. In light of the above, the question arises as to how solidarity is expressed in these acquisitions regimes' more detailed patrimonial operations. To address this question, a comprehensive analysis has been conducted of ten different matrimonial property regimes from seven different jurisdictions (Austria, Belgium, France, Germany, the Netherlands, Norway, and Switzerland), as well as the matrimonial property regimes as proposed by the Commission on European Family Law and the Franco-German Agreement of 2010. These thirteen regimes have been subjected to a functional comparative analysis on the basis of ten parameters in order to assess how solidarity is precisely expressed. These parameters include, among others, the administration of assets, the protection of the family home, the debt regulation, the content of the distributable mass, the key of distribution, and the possibility of contractual deviations from the statutory regulation. This research has resulted in an in-depth evaluation of thirteen European acquisitions regimes. Based on this evaluation, punctual recommendations for each regime have been formulated, as well as global best practices that may guide legislative reforms or marital contracts. In general, the research findings indicate that the distinctions between community regimes and participation regimes are not always as straightforward as they may initially appear. With regard to a number of aspects, both types of matrimonial property regimes display similar characteristics and comparable solutions. Furthermore, it is contended that community regimes do not always express a higher degree of solidarity in comparison with participation regimes when considering their detailed operations. These novel insights facilitate a more transparent understanding and a critical assessment of solidarity in acquisitions regimes.