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Luxembourg

Luxembourg family and succession law recognise two forms of couples' relationships:

  • MARRIAGE between persons of same and opposite sex

  • REGISTERED PARTNERSHIP between persons of same and opposite sex

The marraige is regulated under the Civil Code of 1803 as subsequently amended, while the registered partnership is reguated in the Law of 9 July 2004 related to the legal effects of certain partnerships, amended by the Law of 3 August 2010 and the Law of 27 June 2018. 

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DISCRIMINATORY RULES

There are no rules discriminating spouses and registered partners or opposite-sex couples and same-sex couples, because since the Law of 4 July 2014 reforming marriage which came into force in January 2015, same-sex couples are placed on the same footing as opposite-sex couples (see Art. 2). Likewise, the rights of the registered partners are similar to those of the married couples. There are no special provisions in relation to the ownership regime in de facto partnerships.

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Links to applicable regulations

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MARRIAGE

  • Several family property regimes can be identified in Luxemburg law: default community of property regime, separation of propertyregime, conventional community of property regime, and participation in acquired assets regime.  

When the spouses do not conclude a matrimonial asset contract, the community of property regime between the spouses of the purchased goods is applied by default. All the assets acquired during the marriage belong to both spouses. TThis regime distinguishes between two sets of assets: first, the personal property of each spouse, which includes assets acquired before marriage, personal items acquired during marriage and properties inherited or received as gifts during marriage, and second, assets that the spouses own jointly, which include the fruits of each spouse's work, the benefits and income of jointly owned assets and the property acquired by each or both spouses during the marriage. It also includes all the assets that cannot be considered belonging to one spouse or the other.

Separation of property regime may be chosen by spouses in their matrimonial agreement. In principle, there are no jointly owned assets under this regime. This does not mean that spouses under this regime cannot both own something (for example, if they each paid half the price for an item). Such property is considered as joint (“indivis”) subject to general provisions on joint property (Arts. 815 to 815-17 of the Civil Code). If the marriage ends, assets that cannot be established as belonging exclusively to either spouse are deemed to belong to both spouses in equal proportion. The same applies to deposits in joint accounts. Each spouse retains sole liability for their debts, except as regards loans taken out for household expenses or the children’s education, for which both spouses remain liable. In the event of divorce or death, spouses must only divide these jointly owned assets. Individually owned items do not have to be shared.

Conventional community of property regime means that the spouses can contractually draw up a completely specific marriage regime for them. However, they must comply with the general provisions applicable to marriage property.

Universal community regime may also be chosen by the spouses in their matrimonial agrement. Under this regime, individual assets of the spouse are limited to his or her personal affairs and rights, such as clothes and professional equipment. All the rest is shared, including debts. If the marriage ends, then in theory, each party should receive half of each item included in the shared assets.

Participation in acquisitions regime is rarely chosen in practice. Under this regime each spouse retains the administration, enjoyment and free disposal of his or her personal property. During the marriage, this regime works as though the spouses were married under the separate property regime, and at the time of its dissolution, it operates as a community property regime (Arts. 1569-1581 of the Civil Code).

If the spouses wish to change the regime, that is possible. No matter which regime the spouses choose when they marry, once they have been married for at least two years, they have the right to change to another regime by a notarised deed (Arts. 1536-1541 of the Civil Code).

  • The Luxembourg law knows two types of succession: headed and tested.

If the spouse dies intestate, the succession is regulated by law. In this case, in the absence of children, the surviving spouse is heir ex lege and inherits everything. But, in the presence of children, the property is divided equally between the children of the deceased in proportion to their number. In this case the spouse is not heir. However, the assets received by the children are subject to the rights of the surviving spouse. If the spouse dies making a will, the will prevails. Share of reserved assets is not guaranteed by law for the surviving spouse.

  • However, a share of reserved assets is not guaranteed by law for the surviving spouse.

 

REGISTERED PARTNERSHIP

  • Civil partners are free to set the terms of the property relations within their partnership as they wish, provided they do not contravene the mandatory rules that apply to all civil partnerships.

If the property relations to be regulated are particularly complex, the property settlement agreement may include an inventory statement specifying which items of movable and immovable property are owned individually by each of the partners, and which are owned jointly. All the goods on which one of the partners is not able to establish property is assumed to be jointly owned. If no propeety contract was entered into by the couple, the default ‘legal community’ regime applies to the property of the partners. However, the couple is free to opt for another form of property regime, or to make changes to their existing one.

  • In succession law, registered partners enjoy the same rights to inherit as spouses. 

The Law of 9 July 2004 (Mém. P. 2019 et seq., Parl. Doc. no. 4946) on the legal effects of certain unmarried couples entered into force on 1 November 2004. their rights were extended  by the Law of 3 August 2010 and slightly amended by the Law of 27 June 2018.

 

Prepared by Giovanna Di Benedetto and based on the national report prepared by Ramón Herrera, Alba Paños, Fátima Pérez, Nuria Martínez, David Hiez & María José Cazorla