Dutch marital law: community of goods or marital conditions

Dutch marital law: community of goods or marital conditions

10 August 2011

huwelijk

Congratulations .. you are getting married!

Hopefully your day will be a fairytale! In reality unfortunately not every fairy tale ends with "they lived happily ever after". The reality is that 1 in 3 marriages ends in a divorce. You do not have to think about it and of course you do not come across this. But take it from me that others thought so for you too. In my work as a lawyer, I had a lot of men and women at my table who also did not think they would ever divorce. Unfortunately, we can not look into the future. That's why I give you some tips on what to think about before you "get married together".

Marriage is not only the most beautiful day of your life, marriage is also a legal institution, a legal commitment, with a lot of rules attached to it. There are rules about entering into a marriage, the execution of a marriage, the rights and obligations of spouses, and the end of a marriage.

In this blog I talk about the matrimonial property law. This is part of the rules about the rights and obligations of spouses. One of them is the duty (and the right) to "provide the necessary". This simply means that you are obliged to take care of each other, also financially. This rule is the heart of Dutch matrimonial property law. They can not and must not deviate from this obligation under marital conditions. They can make agreements on many other property-related matters between spouses as long as these agreements do not conflict with the mandatory provisions applicable to marriage or to good morals or public order.

It is therefore important that, before you get married, you think about the way in which you want to regulate the property law aspects within your marriage. In addition, you have two options: no arrangement or the conclusion of marital conditions.

Community of goods

If you marry in the Netherlands without having your marital conditions drawn up, a community of goods automatically arises. The community of goods means that everything you have before you get married and everything you receive, including debt, form a community. All goods and debts thus become common and come, as it were, into one big pot! Exceptions to this are inheritances and gifts obtained under exclusion clause or goods that are "tied" to one of the spouses. In addition, an amendment to the law will come into effect on 1 January 2012, which stipulates that a few other assets that the spouses possess do not necessarily fall within the community.

In case of divorce the big pot has to be shared with halves. After all, every spouse is entitled to an equal share in the community. Easy said; if one has more than the other before marriage, they must share everything honestly in divorce! In addition, creditors can get redress from one spouse on the goods of the community. The other spouse then pays for it. This is one reason why a lot of independent entrepreneurs have a marriage agreement. Of course, many different situations of liability and redress are conceivable by third parties. The answer is not the same in every situation. Moreover, it goes too far to discuss all these situations.

Marital conditions

In marital conditions, spouses may deviate from the "standard system" of the community of goods. You must go to a civil-law notary for making prenuptial agreements. After all, marital conditions must be included in a notarial deed. If not, the marital conditions are void!

Entering into prenuptial agreements can occur prior to and during the marriage. It is preferable to enter the prenuptial conditions prior to the marriage because you need the approval of the judge to enter into marital conditions during the marriage. As of 1 January 2012, you no longer need to request permission from the Court. The law has been changed on that point.

There are different types of marital conditions. As future spouses you have a great freedom of "how and what" you want to meet and arrange. For example, you can agree that there is no community of goods (exclusion of the standard rule) with the agreement the income must be settled. Examples of marital conditions are the limited community of household effects or home or the so-called "Cold Exclusion" with a periodic or final settlement clause. For advice on prenuptial conditions that best suit your situation, a notary can inform you well.

Why marital conditions?

One of the main reasons for having prenuptial conditions is still to prevent sharing of property in divorce. Some couples also consciously choose to marry under marital conditions because they want to keep their financial independence in this way. Marital conditions are also widely used to protect working capital against debts of the other spouse but also to protect private capital against recourse by creditors of a company. In addition, marital conditions can also prevent the company from being "divided" in the case of divorce, which in practice means that an amount from the enterprise will have to be paid to the other spouse, with the risk that the company can not miss this money and therefore goes bankrupt.

In addition, marital conditions are used to protect the family capital in divorce or to secure the inheritance of children from a previous marriage.

In short; getting married is more than a nice day with family and friends, cake and a big party. Of course it is not the intention that you have released all doom scenarios at your wedding before you are well married! Nevertheless, it does not hurt to consider the consequences of entering into a marriage.

The information I have given in this blog is only a tiny part (the basis) of all regulations of Dutch matrimonial property law. It is only informative. For a personal advice based on your situation, it is best to make an appointment with a notary or lawyer. I wish you lots of love and happiness for the future!

Note 1: Chrisje Doreleijers wrote this blog especially for the Bruidsmeisje in 2011. Chrisje is a passionate lawyer.
Note 2: the Dutch law has been changed as of January 1st 2018 and the standard is married in a limited community of goods. Read more about it: https://www.notaris.nl/samen-verder/nieuwe-wet-beperkte-gemeenschap-van-goederen

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