1 October 2020
Just like drawing up a will, in many countries it is normal to contact a lawyer (or solicitor) to draw up a prenuptial agreement.
In the Netherlands, however, the rules for both documents are different. Learn how a notary can help and why you do not need a lawyer to make a prenuptial agreement.
A prenuptial agreement is an agreement in which partners set forth what will happen to your and your partner’s assets and income in the unfortunate event of a divorce, separation or death. Generally, a prenuptial agreement is made before getting married, but a prenuptial agreement during the marriage (postnuptial agreement) is possible.
If you do not want to follow the legal standard matrimonial consequences that apply by law, when entering a marriage, you can choose to make together with your spouse to a prenuptial agreement. A notary has to officially draw up this document. In the prenuptial agreement, you can choose to deviate from the legal standard by law.
The legal standard by law at this moment in the Netherlands is a limited community of property. This means in general, with exceptions, that everything you own alone before entering the marriage will remain yours, and everything you receive after entering the marriage will belong jointly to both of you.
In the prenuptial agreement, you can make choices about what you do want or do not want to share with your spouse in the future and what is the consequence in case of divorce or death. You can choose to share everything with your spouse (community of property), not to share anything with your spouse (exclusion) or some other division in between.
You can also choose which law is applicable in case of a divorce. If you want to have another law apply, it is recommended to make a prenuptial agreement.
In many countries, it is customary to have a prenuptial agreement written by a lawyer or solicitor.
In the Netherlands, however, only civil-law notaries are authorised by law to draw up a prenuptial agreement and register it (make it official). Solicitors are not allowed to do this by law.
GMW lawyers therefore cannot assist you with making a prenuptial agreement, but we can refer you to a notary in our network.
GMW lawyers cannot and may not prepare prenuptial agreements. Only a civil-law notary can draw up a prenuptial agreement and register it in the Netherlands.
When you think about ending your marriage and you have made the decision to divorce, then you will need to see a legal specialist – not a notary. In the Netherlands, only lawyers/solicitors can assist you in a divorce procedure.
You will need a lawyer to file a petition for divorce with the court. Your lawyer may also be able to take additional measures in advance, for example arranging the divorce agreement with the (lawyer of the) other party. The aim is to arrive at a divorce agreement (and a parenting plan, if you have children) that includes all the arrangements. If that can be done, the court only has to be involved to pronounce the divorce. This usually happens fairly quickly. If discussion is not possible, the proceedings must be conducted based on the content. Some of the common points of dispute in a divorce include issues such as alimony, capital and children. Your lawyer will draw up the documents for the proceedings to ensure that you achieve the best possible result in court.
While a lawyer is not involved in making a prenuptial agreement, they can assist you with related subjects such as:
If you need help with making a prenuptial agreement in the Netherlands, please contact a notary for assistance.
This weblog was written in close collaboration with Bianca Kok-Beekhuizen, legal assistant in the family and inheritance law section. For more information, you can contact Susan Meijler or Bianca Kok-Beekhuizen (070-3615048).
