What is separate property?

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Danish law

This text is meant as general information (not advice) on Danish law regarding separate property and common property. Not all details are included in the text and some aspects of the Danish rules may be lost in translation. 

If you want legal advice, feel free to contact MinAdvokat.dk by e-mail – we speak English.

As an example the text is based on what questions a couple normally may have, if a Danish man plans on marrying a woman from Thailand.

Parts of the text may not be relevant if the woman is from another country.

What is separate property?

The Danish property regime is (complete) community property (“Formuefællesskab“). When marriage terminates (divorce or death), each party is to receive 50 per cent of the total net property of the two spouses. Only pensions are exempt from this distribution.

Spouses may execute a marital agreement (“Ægtepagt“), either before or during their marriage, stating that another division of property shall apply between them.

Separate property is an agreement about what will not be divided in the event of divorce.

The agreement must be drawn up as a marriage contract and must be formally registered to be valid.

You may choose between two types of separate property: Fully separate property in case of divorce or death (“Fuldstændigt særeje“) or separate property in case of divorce (“Kombinationssæreje“). If you choose the latter, the separate property is not subject to division in case of legal separation or divorce nor in respect of the estate of the surviving spouse.

In the event of divorce and during marriage the consequences of the two forms of separate property are exactly the same: There is no division of the separate property in the event of legal separation or divorce.

The difference becomes apparent on death if the deceased spouse had children.

Are we entitled to inherit from each other if we have separate property?

Spouses are still entitled to inherit from each other even if a marriage contract providing for separation of property is concluded. If neither of you have kids, you will inherit 100 percent from each other, if the deceased spouse had his/her habitual residence in Denmark at the time of death.

The type of separate property determines the consequences for inheritance, if the deceased person had kids.

We want to inherit as much as possible from each other

If your wish is that – in the event of death – you should be able to inherit “as much as possible” from each other, the separate property “Kombinationssæreje” is the right type of separate property.

This requires that you also make a will if you want to inherit as much as possible from each other – however, “Kombinationssæreje” is the basis for the fulfilment of your wish.

We do not want to inherit anything from each other

If, on the other hand, your wish is that you should not inherit anything from each other (your own children or relatives are to inherit instead), a marriage contract providing for fully separate property (“Fuldstændigt særeje”) is the basis for the fulfilment of your wish.

However, even with fully separate property, spouses are entitled to inherit from each other. If you want your children to inherit all your assets, the marriage contract must be supplemented by a will, in which you renounce inheritance from each other.

Should we make the marriage contract in Denmark or in Thailand?

Normally, you are subject to the the property regime in the country where you have your first habitual residence together. If your first joint home is in Denmark, you are subject to the Danish laws on common property.

You are allowed to choose which country’s laws on property regime, you wish to be subject to in your marriage.

You can choose between the rules in either of the countries where each of you live or have citizenship. If one of you live in Denmark or is a Danish citizen living abroad, you can make a marriage contract (“Ægtepagt” in Denmark.

What happens if we later decide to get divorced in another country than Denmark?

The rules mentioned above pertain to the Danish rules on international family law. Other countries have different rules regarding choice of law. 

If you file for divorce in another country than Denmark, it will be that country’s rules on choice of law that decide whether your Danish marriage contract is also valid in that country.

Example:
If you file for divorce in Thailand and the devision of your estate takes place in Thailand, it will be the rules on international choice of law in Thailand that decide if your Danish marriage contract is valid.

Should the marriage contract be made before the marriage or can it wait until after we have been married?

It is not a legal requirement that the marriage contract has been made before the marriage. However, many couples choose to register the marriage contract before they marry. This is because couples “automatically” have community property in Denmark when they marry if no (valid) agreement on separate property has been concluded in advance.

Can we make agreements on maintenance payment, etc. in the marriage contract?

A marriage contract may only include provisions on the type of separate property and the scope of the separate property.

It is not possible to include provisions on e.g. maintenance payment in the marriage contract.

Should the marriage contract be translated into Thai?

It is necessary that both parties have understood the wording and the contents of the marriage contract. If the wife does not read and understand Danish, it is necessary that the marriage contract is translated. The translation should be into a language that the wife understands.

The price for translation is not included in the price of DKK 3.750. It usually cost about DKK 2.000 for translation of the marriage contract into Thai. Contact us to hear more about current prices.

You can also make your own arrangements for translation. Of course, the translation must be correct – and should be in writing to ensure that there is evidence.

What is the matrimonial property regime in Thailand?

Generally, the Danish matrimonial property regime with community property resembles the Thai matrimonial property regime. The Danish rule on community property means that spouses must divide all assets in the event of divorce, except from pension savings. Please note that in Denmark, this also includes assets you owned before you were married.

According to Thai law, a distinction is made between “matrimonial assets” and “personal assets”. Matrimonial assets must be divided, whereas personal assets may be excluded from the division of assets. All assets acquired during marriage must (however) be divided, as they are regarded as being matrimonial assets.

My future spouse has no civil registration number – is that a problem?

Civil registration numbers (CPR numbers) must be used in connection with the registration of the marriage contract. Without registration, the marriage contract is not valid.

If the wife has no CPR number (yet), a power of attorney may be issued to the attorney, who can then sign on behalf of the wife. 

If the wife has no CPR number, the attorney must also receive a copy of her passport to be used for the registration.

My future wife has a CPR number, but no digital MitID – is that a problem?

If the spouse has no digital MitID, a power of attorney (“Tinglysningsfuldmagt“) may be issued to the attorney, who can then sign on behalf of the wife.

My future wife has no residence permit – is that a problem?

It is not a requirement for the validity of the marriage contract that the wife has a residence permit in Denmark. However, the residence permit is requisite for obtaining a CPR number.