17 August 2010

Having the law on your side is one thing, but winning a legal dispute is another

By Lise-Milou Lagerwerf

This is especially true if the spouse required to pay up lives abroad.

The last weblog dealt with the fact that with its general community property regime, the Netherlands occupies a unique position in the world. As a result, foreigners (expats) who get divorced in the Netherlands are sometimes in for an unpleasant surprised. Another typical Dutch legal concept is attachment by one spouse of the matrimonial community of property or the assets of the other spouse pending divorce proceedings.

Prejudgment attachment in the Netherlands

In the Netherlands, prior to or during divorce proceedings, one spouse can have a prejudgment attachment imposed on the assets of the other spouse, without informing him or her hereof and consequently without him or her being heard. In practice, a request hereto is almost always granted by the court. A prejudgment attachment by one spouse of the matrimonial community of property or the assets of the other spouse means exclusively that the other spouse is not permitted to dispose of the goods on which an attachment has been levied. No sums payable are collected based on such an attachment.

Why would you choose do take such action?

You can levy a prejudgment attachment to prevent a lack of attachable objects in the future from which sums owed can be recovered.

Suppose divorce proceedings are pending in which you (as the wife) have requested that spousal maintenance be determined, to be paid by your husband. If you are afraid that your spouse will sell property in anticipation of the court decision on spousal maintenance, a prejudgment attachment of the matrimonial community of property or your husband’s assets can be levied.

Another example: suppose you as the husband claim that your wife owes you a sum in money based on the division of the marital property or the settlement of the marital property regime. In this case, before this is established at law, you can have a prejudgment attachment imposed on your wife’s assets.

Prejudgment attachments abroad

A prejudgment (marital) attachment is an unknown legal concept abroad and is not recognised. This means that permission granted by a Dutch court to make a prejudgment attachment cannot be used by a spouse if the other spouse has objects that can be subjected to be attachment abroad exclusively.

Executory attachment in the Netherlands

After the decision of the court in the divorce proceedings, the prejudgment attachment is converted into an executory attachment if the right of action of one spouse vis-à-vis the other is indeed determined. On the basis of such an executory attachment, sums owing can be collected. If, to continue along the same lines as the first example, spousal maintenance is determined payable by the husband, an executory attachment can, for example, be levied on the husband’s salary. The spousal maintenance for the wife can be collected by means of such attachment of earnings.

Executorial attachments abroad

In the event that the husband lives abroad and receives a salary there, the imposition of an executorial attachment of earnings will require more time and entail higher costs. The court decision will first need to be translated. A foreign lawyer and/or a foreign bailiff will then have to be called in to make the attachment. In some cases, the Dutch National Maintenance Collection Agency [Landelijke Bureau Inning Onderhoudsbijdragen] (www.lbio.nl) can take the matter into their hands.

Should you require more information, please feel free to contact me at any time.

Lise-Milou Lagerwerf

Lise-Milou Lagerwerf


Lise-Milou specialises in family law. Her focus is on (international) divorces.

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