CASTELEIN, C., “Adultery is not forgiven, but avenged! On the extinction of contractual successions after the establishment of adulterous ancestry”, TBBR 2006, Kluwer, 422 p. www.elfri.be/rechtspraak/contractuele-erfstelling-en-onherroepelijkheid When the question of guilt disappeared from our law and the articles on benefits were amended, the legislator forgot to provide specific regulations for contractual successions, and a transitional provision on these benefits was not created, while the other amendments, the Our legislator in the new divorce law had received transitional provisions. As a result, case law and jurisprudence have jumped into the gap to fill this gap. At first instance, the family invokes article 955.2 ° of the Civil Code, which shows that heirs can invoke ingratitude because the adulterous relationship of his ex-wife was a gross insult. They also refer to Article 957 of the Dutch Civil Code, which states: “If the donor dies within one year of the facts that may lead to the revocation, the donation may be revoked.” However, the court considers that the deceased spouse did not feel offended, which allowed his adulterous wife to retain the contractual inheritances. In this case, the court held that contractual succession constitutes a legal exception to the prohibition on concluding succession contracts not yet open (Art. 1130 CC). A contractual inheritance may take the form of an ordinary gift, i.e. a formal act. The heirs appealed this challenge and succeeded in obtaining the paternity dispute. The heirs also invoke article 334ter of the Civil Code, which provides that “the adulterous spouse loses the contractual inheritances as of right”. However, the adulterous wife requests the application of Article 334ter(1) in the amount of the Dutch Civil Code, which stipulates that “if the husband goes to the notary to express his will, he wished to retain the benefits, this forfeiture will not take effect”.
2.2 Advantages and disadvantages of contractual successions Since the introduction of the new divorce law, it no longer matters on what basis the spouses divorce. Contractual successions and matrimonial benefits (in particular those that are also survivors` rights) expire automatically on the basis of article 299 of the Civil Code and article 1429 of the Civil Code. If the spouses wish to retain marital benefits or contractual inheritances after the divorce, this can be determined by including a constitutive act in the marriage contract. Article 1287 of the Judicial Code provides for a possible solution to rule out this omission. In my opinion, this will happen very rarely in practice, since the affectio maritalis has disappeared. However, the legislature has not determined when this document must be drawn up, so that in the legal literature it is assumed that this document can be drawn up at the conclusion of the marriage contract, during the divorce proceedings itself or during the division of property. [112] Currently, the legislator has provided for a regulation and it is possible that this clause will be inserted in the event of an amicable divorce. Article 1287(3) of the Deutsche Gesellschaft W.
states: “In the same document, they must prove what they have agreed with regard to the exercise of the rights referred to in articles 745bis and 915bis of the Civil Code, in the event that one of them dies before the judgment or decision giving final effect to the divorce.” If the marriage contract provides for marital benefits or contractual inheritances in respect of the adulterous spouse, it is all too obvious that the desire to suppress them is great compared to the cheated partner. Our law helps this partner in this process and has created Article 334 of the Dutch Civil Code. An amendment was recently made to our act, namely the Law of 10. December 2012 on the “Amendment of the Civil Code, the Penal Code and the Judicial Code with regard to the indignity of inheritance, the revocation of donations, the confiscation of matrimonial benefits and the fulfillment of the place”. These relatively new regulations represent the new rules of indignity in inheritance law. There has been a lot of tinkering when it comes to contractual inheritance and marital benefits. [105] For example, Parliament has broadened the grounds for indignity and better protected the rights of third parties when indignity is pronounced. Parliament has also abandoned vague descriptions in order to avoid the factual judge having to pay too much attention to assessing the intention or otherwise of the unworthy person. [106] In the new Divorce Act, Parliament also abolished former Articles 300 of the Civil Code and 307 of the Civil Code on contractual successions, so that there were no longer any specific regulations for contractual inheritance after divorce. This led to problems and legal uncertainty in practice, which quickly led lawyers to speculate on the consequences of contractual inheritances after divorce.
Of course, that should not be the intent of our law. [46] On March 29, 2007, at the request of Ms. Marie-Christine Marghem, Minister Koen Geens provided additional explanations and stated that contractual successions fall under the new Article 299 of the Civil Code and therefore expire by law even in the event of divorce, regardless of the reason for the divorce. [47] On the contrary, the concept of matrimonial benefits has been defined in the legal literature and case law because the law has not defined them much. The legislator cannot be blamed because there are many different types of clauses and they can be created between spouses and not everything can be listed. Before the entry into force of the new Divorce Act, contractual inheritance did not expire, although article 1429 of the Civil Code clearly stipulated that all matrimonial benefits that were rights of survivorship expired for both spouses, based on article 299 of the Civil Code. However, it was Article 300 that stipulated that contractual inheritances were preserved. In my opinion, this was a very contradictory provision of the act. With the new change to the law in 2007, the legislator had to seize the opportunity to determine something better, but nothing could be further from the truth. The legislator abolished Article 300 of the Dutch Civil Code, but forgot to regulate something instead, so there were discussions again. The object of a contractual inheritance may consist of the entire estate of the testator attributed to a particular heir, on the other hand, it may also consist of the largest available part of the estate. The object may just as well relate to a specific part or asset of the testator`s estate.
[100] The fate of contractual succession after divorce was contained in former articles 300 and 307 of the Civil Code before the entry into force of the new divorce law. Article 1429 of the Civil Code provided that the rights of survival would be extinguished in the event of divorce between the two spouses. However, former article 300 of the Civil Code provided that the contractual inheritance (which is also a right of survival) of the innocent spouse was preserved. [37] In my view, Parliament disagrees with these two sections. I must assume that contractual successions are an exception to the principle that benefits which are survivors` rights expire automatically in the event of divorce. .