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.
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?

An agreement on separate property in marriage is an agreement on what will not be divided in the event of legal separation or divorce.

The agreement must be drawn up as a marriage contract and must be registered to be valid.
You may choose between two types of separate property: Fully separate property and separate property 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. The type of separate property determines the consequences for inheritance.

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 not subject to division” 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, the marriage contract providing for separate property not subject to division is the basis for the fulfilment of your wish.

If, on the other hand, your wish is that you should not inherit anything from each other (your own children are to inherit instead), a marriage contract providing for fully separate property 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?

The decisive factor for deciding where the marriage contract should be made is “the husband’s domicile at the date of marriage”. If the husband’s permanent address is in Denmark at the date of marriage, the marriage contract must consequently be made in Denmark.

Where the marriage takes place, the wife’s place of residence, the wife’s citizenship, etc. are not relevant in this connection.

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 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 3.250, but we can offer a fixed price of DKK 2.000 for translation of the marriage contract into Thai.

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. 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 NemID – is that a problem?

If the spouse has no NemID, a power of attorney 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.


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