Gifts received by a spouse subject to an exclusion clause remain the property of that spouse. This has been ruled by the Supreme Court recently confirmed.
Community of property
The case concerns a man and a woman who married in 1985 under the community of property regime. In 2002, 2004 and 2006, the woman received a gift of €10,000 (making a total of €30,000). The donor stipulated that the gifted amount should remain outside the community of property (exclusion clause).
In 2014, the marriage ended in divorce. The marital home is sold. The wife claims half of the capital gain realised on the sale (proceeds minus debts), which constitutes half of the community of property. In addition, she believes she is entitled to €30,000 in connection with the gifts she has received.
Exclusion clause
The Supreme Court ruled in the woman’s favour. Due to the exclusion clause attached to the gifts by the donor, the gifts have remained part of her private assets. The Supreme Court confirms that the fact that she deposited the sums received into the joint bank account does not alter this.
That deposit entitles her to a claim against the community of property. This right remains in force even if the couple use the money to repay debts incurred jointly. The couple’s everyday expenditure also forms part of the joint debts.
The burden of proof rests with the man to show that his ex-wife used the gifts to pay off her private debts. He fails to do so. The funds can no longer be traced within her assets as of 2014. It is not clear exactly what they were spent on. Nor is there any record of what the husband and wife agreed between themselves regarding the use of the funds. The man therefore fails to rebut the presumption that the gifts were used for consumer expenditure that can be regarded as joint debts.
The Supreme Court’s judgment concerns the law on matrimonial property as it applied prior to 1 January 2018.