Business and marriage. Is your business part of the marital community?

As an entrepreneur, you're primarily focused on the success of your business. Legal matters need to be well-organized, but they often don't get the most attention. For example, what happens to your business if you move in together or get married? This is very useful to know, not only for you as an entrepreneur, but also for your partner! For example, imagine you're married to an entrepreneur, but the business isn't doing so well, and your partner racks up debts with their business. What happens to you as a spouse? Can you be held liable for that too?

If you live with your partner and you or your partner starts a business, it's simple. The business belongs to the person who started it, unless further agreements are made in a contract and/or the non-entrepreneur co-invests. This article focuses primarily on who owns the business (and is liable for any debts) if you are getting married or are already married. To answer this question, the date of your marriage is important.

Married after January 1, 2018, the 'limited community of property' applies

If you married on or after January 1, 2018, or if you are planning to marry, the law automatically stipulates that you are married in a so-called "limited community of property." This means that any private property you owned before marriage remains yours. Everything you owned jointly before marriage and everything you accumulate during the marriage automatically becomes part of the marital community and belongs to you both.

In short, this means that if you have a business that was yours privately before marriage, it will remain yours privately after marriage. Your partner will not become co-owner unless you legally establish this. This is different if you only start your business during marriage. In that case, if you haven't entered into a prenuptial agreement, the business belongs to both of you. After all, anything you build up during marriage is automatically jointly owned by law (in other words, falls under the marital community of property). There is one important exception to this, however: if you start a business with money from an inheritance or gift. Even during marriage, this money remains privately owned, and so does anything you buy with it!

Married before January 1, 2018, the 'general community of property' applies

If you were married before January 1, 2018, you are subject to the statutory regime of "full community of property," unless you have a prenuptial agreement. This means that everything you acquired before and during the marriage falls under the marital community of property, including your business. Your partner/spouse will then also be liable for any debts incurred in the event of bankruptcy.

Would you like to arrange things differently? Visit your notary for a prenuptial agreement!

If you don't want your partner to share in your business, or you want to prevent your partner from being held liable for debts if the business fails, you can take action. You can draw up a prenuptial agreement with your spouse. This can be done before you marry, or even after you're already married. In this prenuptial agreement, you can stipulate that everything you acquire before and during the marriage will remain separate. You can also make specific agreements that pertain solely to the business. If you wish to acquire a business privately during the marriage and/or avoid your partner's/spouse's liability, this can be arranged through a prenuptial agreement.

In closing

As an entrepreneur, it's important to understand the consequences of being a married entrepreneur and the risks your spouse faces. Want to prevent your partner from being held liable for business debts? Then seek advice on drafting a prenuptial agreement. This can prevent your spouse from being dragged into bankruptcy.

Would you like more advice on this topic? Visit us at Verploegh Chasséplein 1, 3134 BZ Vlaardingen, chat via www.maesnotarissen.nl, email service@maesnotarissen.nl, or call us at +31 (0)10 44 53 777. We look forward to seeing you.

This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.

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