Until January 2018, unless parties expressly agreed otherwise, all property, whether acquired before or after marriage, automatically became communally owned by both spouses. This universal community of property remains in place for all marriages concluded until the 1st of January 2018. As of the 1st of January 2018 a more limited marital property regime has been introduced, as described below.
Both nationals and non nationals can be confronted with the consequences of this system if living in the Netherlands at the time of marriage.
The universal community of property regime entails that upon divorce both spouses are each entitled to 50% of the marital property. Parties may deviate from this principle when agreeing a negotiated divorce settlement, but this may have certain fiscal implications if one party receives significantly less than their portion. If the divorce is contested in court, a court will virtually always hold fast to the equal division of property.
One of the main arguments in favour of common marital property is that in theory it is easy to divide the marital property and both parties always receive an equal share upon divorce. The system may seem simple, but in some cases can lead to inequitable results. For example, if one of the spouses incurs a debt without the knowledge of the other, they are still liable for 50 % of the debt after divorce even though they may never have been aware of this or had any benefit from it during the marriage.
The only method of avoiding the consequences of marrying in community of property, is to conclude a prenuptial or post nuptial agreement before a Dutch notary public excluding the universal community of property. The most common form of prenuptial agreement involves creating only a partial community of property for certain goods, such as the marital home . All other property is then deemed to be privately owned by the spouse that acquired said property. Upon divorce conflicts may arise if private property has been jointly financed or more property than envisaged in the prenuptial agreement is deemed to be jointly owned.
Some prenuptial agreements exclude all communal property, but may or may not contain certain clauses to mitigate the effects of this exclusion for the spouse with the lesser income or property. The agreement may either contain an annual set-off clause, requiring the spouses to compensate each other at the end of each year, or there may be a final set-off clause requiring the spouses to compensate each other upon divorce. In both cases conflicts can arise during the divorce proceedings regarding which income or property must be involved in the annual or final settlement.
It is also possible to conclude a post nuptial agreement, but this does not completely heal over a previous community of property. Post nuptial agreements must also not be detrimental to creditors rights, who may otherwise have the agreement rescinded.
For all marriages concluded after the 1st of January 2018 a new marital property regime applies. In short, property acquired before marriage is no longer a part of the marital property. However, it is still advisable to seek advice on a prenuptial agreement if there is significant pre-marital property or one of the spouses is a company owner.
How can Bowmer & Nuiten help you?
Our divorce lawyers advise both national and foreign clients concerning divorce and division of marital property on a regular basis and can advise as to the best strategy upon divorce to enforce your rights. Before marriage, we can also advise on the consequences of your proposed marital regime and the status of any prenuptial agreement.
Please note that any prenuptial agreement must be drawn up and registered by a notary public to be valid. Our office does not provide this service, but can act as a liaison or provide second opinions for proposed prenuptial or postnuptial agreements.
The English language expatriate desk is run by family law specialist Maria Bowmer. Please feel free to contact her with any questions or queries.
You can also consult our partner webiste Dutch Divorce Lawyer for more detailed information on all aspects of Dutch divorce law.