Divorcing expats are often stunned by the consequences of the regime of community of assets

Expat couples intending to divorce are well-advised to first get their facts right with regard to the country in which they file their divorce petition. Since family law differs from country to country, all available alternatives and the consequences thereof must be examined, before opting for a certain legal system. Filing for divorce under Dutch family law can often result  in sobering surprizes.

The community of assets and property

The Netherlands is among the very few countries in the world where, in the case of a marriage, the regime of community of assets and property is automatically applicable, if no other provisions were made. This stance has far-reaching consequences, as both spouses are entitled to equal shares in all assets and property as well as all debts, independent of the name in which the assets or debts have been registered. This matrimonial regime also covers all assests and debts aquired previous to the marriage, as well as property amassed following an inherintance or gift.

Foreign law

Most countries handle a matrimonial regime similar to the German “Zugewinnungsgemeinschaft”, meaning that only wealth and debts that were amassed during the marriage, by either of the spouses, are covered by the regime of community of assets and property. Assets and property aquired previous to the marriage or resulting from an inheritance or a gift are not part of the matrimonial wealth. However, there are quite a few foreign legal systems that automatically disqualify the matrimonial regime of community of assets and property, meaning that there is no community of goods whatsoever, unless otherwise bindingly agreed.

Expats in The Netherlands, Dutch nationals abroad

Foreign nationals filing for divorce in The Netherlands are often shaken, when they find out that Dutch international private law may decide that Dutch law is applicable to the division of their matrimonial wealth. The consequences are far-reaching and very difficult to avoid.
Equally, Dutch nationals living abroad often asume that the Dutch regime of community of assets and property is applicable to their matrimonial wealth, if they were married in The Netherlands and have not signed any prenuptial agreement. This is often not the case and things can get messy and complicated. A Dutch couple, married under Dutch law but filing for divorce in a foreign country might find that the international private law of the host country overrules the provisions of Dutch family law, most often to the detriment of the parties.

In light of the above, the need for a reliable source of information with respect to the ins and outs of the family law applicable to a divorce is hopefully self evident. Please consult GMW’s department specialised in Dutch and international family law  if the cases described above have raised further questions with you.