Marriage isn’t just about love: it’s probably the most important legal contract you’ll ever enter into. We urge all our mamas and papas to make sure they understand the legal ins-and-outs of what they are signing up to.
New Dutch Matrimonial Property Law as of 1 January 2018
A new law on matrimonial property came into force in the Netherlands on 1 January 2018. From that date onwards, unless otherwise stipulated by prenuptial agreement, a limited community of property regime applies to all marriages contracted in the Netherlands. Under this regime, only those assets and debts acquired during the marriage form part of the community of property, while those assets acquired by inheritance or as a gift, pension rights and survivor’s pensions covered by the Dutch Act on Equalisation of Pension Entitlements after a Separation are excluded. The community of property also includes assets owned jointly by the spouses prior to marriage (e.g. while living together).
This change to the law governing Dutch matrimonial property might raise questions for couples who plan to marry here, couples that are already married here, and for couples that have married abroad.
Choice of Law
For couples intending to marry in the Netherlands, it is wise to consult a notary familiar with international family law to draw up a prenuptial agreement. This agreement should include the choice of law to govern matrimonial property. This will remain applicable in many countries to which the couple might move at a future date, the UK and USA excepted.
Under Dutch Private International law, couples may choose:
- the law of the State of which one of the partners has nationality;
- the law of the State where one of the partners has his or her residence at the time of the choice;
- the law of the State where the couple will have their first habitual residence after marriage.
For real estate the couple may choose the law of the State where the property is located.
The designation of a specific law must be expressly agreed or unambiguously derive from a marital agreement.
So, if one of the partners is a Dutch national, or at least one of the partners is resident in the Netherlands, the couple may elect to have their matrimonial property governed by Dutch law in which case the new law on marital property mentioned above will also apply.
Determination of Applicable Law on Matrimonial Property Law
Couples who are already married, whether here or abroad, may wish to determine which law is applicable to their matrimonial property, if a choice was not previously made by prenuptial agreement.
As we are in the Netherlands, we will approach the matter on the basis of Dutch Private International rules. However, for couples currently living abroad or moving abroad at a future date, the applicable law needs to be determined on the basis of the Private International rules of the other State. The law applicable to their marital property may well be different.
In the Netherlands, the Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978, applies to marriages solemnised after 1 September 1992. (Please consult your notary if you married prior to this date.) If no choice of law was made by prenuptial agreement, then the applicable law is the law of the first common habitual residence of the spouses, if the spouses do not have common nationality. For spouses with a common nationality, their national law applies under certain conditions. If the spouses have neither a first common habitual residence, nor a common nationality, then the law of the State with which the spouses are most closely connected applies. Please be aware that the applicable law can change through naturalization, immigration, and after 10 years of residence in a particular country. These changes can be prevented by making a choice of law or concluding a marital agreement.
Previous Dutch Matrimonial Property Law For Couples Married Before 1 January 2018
If Dutch matrimonial property law turns out to be the law applicable to matrimonial property and the couple was married before 1 January 2018, the previous statutory regime consists of a comprehensive (rather than a limited) community of property. All assets which the spouses owned at the beginning of the marriage and all assets which they acquired after the marriage belong to the community of property for so long as the community is not dissolved. Assets which are acquired by inheritance or gift remain outside the community providing the last will of the deceased or the intention of the donor explicitly states this to be the case (an exclusion clause). Pension rights as intended in the Dutch Act on Equalisation of Pension Rights in the Event of Separation and surviving dependents’ pensions do not belong to the community. Assets (and debts) that are exclusively connected to one of the spouses do not fall within the community either. Debts entered into by the individual spouses also belong to the community and are to be paid out of the community’s assets.
Consequences of Divorce / Separation For The Community of Property
The marital community of property, in both its previous and current versions, is dissolved by divorce. In principle the spouses are each entitled to one half of the assets. After dissolution of the community, each spouse can ask for the return of his / her clothes, jewellery, professional and business equipment, papers and family mementos. The distribution can be established in a divorce agreement or by a judge and can be requested at any time.
Consequences of Death for the Community of Property
If the matrimonial property regime is the Dutch community of property, whether in its old or new versions, then the surviving spouse is entitled to one half of the undivided community property, while the other half goes into the estate of the deceased. The surviving spouse holds a special position in inheritance law: according to the law, if he / she is an heir together with the children, all of the assets from the deceased’s estate are allocated to him / her under the obligation to pay off all debts, while the children retain claims upon the estate that need only be paid out upon the surviving parent’s death. If the surviving spouse is excluded from the deceased’s will or s/he is otherwise in need, s/he can request the right of use and usufruct of the former matrimonial home and a right of usufruct on other assets.
Pauline Montanus is one of seven partners of the niche international family, juvenile and inheritance law office SCG Advocaten. They have an office in Amsterdam and in Eindhoven and are twelve lawyers total. Pauline’s practice focuses mainly on complex divorce and divorce-related cases involving children in need, international aspects (including child abduction) or where child protection measures are concerned.