Many entrepreneurs set up a company while they are married, without really considering what that might mean later. In practice, disputes about shares during divorce or upon death often arise because no attention was paid to the matrimonial property regime at the time of incorporation.
Under the statutory regime, the key question is with what money the company was founded. Suppose that during the marriage you contribute €10,000 to start your company, and that money comes from the joint household account into which both salaries are paid. In that case, the shares are in principle jointly owned, even if only your name appears in the share register. In practice, we often see entrepreneurs who are surprised to learn that their ex-partner is entitled to half of the value of the shares upon divorce, even if that partner never worked in the business. The argument “but the company is in my name” does not help. What matters is the source of the funds.
Another example: you set up your company with €20,000 that you put aside before your marriage. The money was in an account solely in your name, and you can prove this with statements. In that case, the shares remain your personal property. But if salary payments later flowed into that same account during the marriage and you subsequently made a contribution to the company, uncertainty arises. In practice, this often triggers discussions: was the contribution made with personal funds or with community funds? A small ambiguity can have major consequences.
Income also plays a role. Many entrepreneurs assume that dividends “belong to them” because they hold the shares. Under the statutory regime, however, dividends automatically fall into the community property. As a result, it often happens that an entrepreneur has dividends paid into a separate account for years, only to learn afterwards that the ex-partner can still claim part of it. Those who wish to avoid this must conclude a marriage contract specifying that such income remains personal property.
In a regime of separation of property, the situation is clearer. Whoever establishes a company does so with personal funds, and the shares remain fully their own. In practice, many entrepreneurs choose this option because it offers clarity and prevents the company from being “partially dissolved” in the event of divorce.
In a full community of property regime, the opposite applies. Everything belongs to the joint estate. We still see this with some couples who consciously choose complete equality. In such a regime, all shares automatically belong to both partners, regardless of who financed or manages them. In the event of divorce, the shares must be divided or one partner must buy out the other.
Because these rules can have far-reaching consequences, it is essential in practice to document the parties’ intentions clearly when incorporating a company. It often happens that an entrepreneur makes a quick contribution from the household account simply because that account happened to hold funds at that moment. Years later, this leads to the conclusion that the shares have actually become jointly owned, even though that was never intended. By using the correct account from the outset and recording this in the deed, you can avoid such disputes.
When partners eventually can no longer cooperate within the company, the best solution is usually an amicable transfer of shares. If that fails, the matter goes to court, where an expert is appointed to value the company and determine who must take over which shares and at what price. That process is typically more expensive and more stressful than reaching sufficient clarity beforehand.
