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Jura og virksomhed
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On starting business, which is a risky venture, it might be a good idea checking out the legal state of your marriage.
Below are the main features of liability between spouses.
Community Property
If you are married, you will, normally, have community of assets - community property.
Community property comprises two shares belonging to you and your spouse, respectively.
Your share could be the house, car, TV, etc.
Your spouse’s share could be securities, furniture, books, etc.
The things you have brought into the marriage or have bought or received as a present or inheritance in the marriage, belong to you (your contributed share). Likewise as for your spouse.
Thus, you own each your share, which obviously represent unequal values, depending on the specific contents of each share.
You have separate ownership and separate liability for your share.
- Separate ownership implies that you only have the right of disposal of your own property, i.e. sell, mortgage, pledge, charge, lease, lend, part with the possession of, deposit or in any other similar way deal with the property.
However, limitations to your disposing of your own property exist in respect to the real property you live in, or from which your spouse runs a business, your vacation house as well as a number of other properties. Such limitations treat unwise, disloyal selling/pledging, etc.
- Separate liability implies that your creditors will only succeed recovering a debt through your property (your share).
You and your spouse must prove to whom a given asset belongs. Therefore, it is a wise thing to prepare a list of things you owe separately as well as filing receipts of large acquisitions clearly specifying who bought the items.
Starting business you are personally liable to any debt you undertake, unless your spouse has accepted personal liability.
This is relevant when your spouse has signed e.g. a loan or a purchase agreement as co-debtor or as guarantor.
However, as for tax arrears Danish tax legislation lays down that spouses living together are equally liable to each other’s tax debt.
Collection of a tax debt must, however, first have been tried at the indebted spouse.
Joint Ownership
It must be emphasised, that nothing prevents spouses residing in a community property relationship from having jointly owned property (joint ownership). Your house is subject to joint ownership if both of you have signed the conveyance. Your spouse may own 1/3 and you own 2/3 and you are the one liable to the creditors.
If you do not fulfil your commitments to the creditors they can petition for a compulsory sale of the house and collect your share of the purchase sum. I.e. the joint ownership is cancelled and you are paid each your share, however, your share goes to the creditors.
On joint ownership you should make a joint ownership agreement verifying the conditions on cancellation of the joint ownership.
Separate Property
Many people believe, that in order to gain protection from creditors, they need separate property. This is not so, as you can see above on community property. Separate property is a mere documentation of what you and your spouse own respectively and your creditors will only be able to touch your separate property.
Separate property is a mutual arrangement between you and your spouse or a provision set forth by a donor or testator.
Separate property is obtained by marriage contract providing for separation of property (written agreement). Consult a lawyer. A marriage contract must be registered to be valid.
Non-marital Relationship
If you are an unmarried couple living together your cohabitant is not liable for your debt or for any other of your commitments.
You do not have community property, but are regarded as two financially independent individuals.
However, jointly owned property is possible as joint ownership.
You are not automatically entitled to succeed each other’s property, but you can make a will.
Simonsen
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