Division and settlement of property

In the context of divorce, the property has to be divided and/or (partly) settled on the basis of either a matrimonial community of property or a prenuptial agreement.

If you were  married abroad, you may think that Dutch law will not apply to your divorce – but you may be in for a surprise. Learn more about when Dutch law applies to divorce.

What does a community of property entail?

If spouses have not had a notary draw up a prenuptial agreement, they are married in community of property. The community property seems clear enough: both spouses are entitled to half of all assets and are liable for half of all debts.

Yet there can be some catches. Has one of the spouses received an inheritance or a gift and is a so-called exclusion clause applicable? If that is the case, the inheritance or gift in principle remains outside the community property. Has one of the spouses received compensation for an accident? Then there is a chance that this compensation does not fall under the community property. The same applies to a severance payment.

GMW lawyers can assist you in determining the extent of the community property and the division thereof.

What does a prenuptial agreement entail?

In many prenuptial agreements a “periodic transfer” clause is included with which spouses have agreed to divide the annual accrued income that is not spent on the costs of the household. Most couples, however, do not actually do this. This means that in case of a divorce, this will still need to be done. The legislator has determined that in that situation, in principle all property has to be divided. Rendering proof is, however, possible but what if one of the spouses has invested their own money in the property of the other spouse or in a communal property (such as the house)? Prenuptial agreements and their effects often lead to quite a few arguments in case of a divorce, often resulting in substantial negotiations.

Prenuptial agreements without a set-off clause (the so-called “exclusion clauses”) can also cause problems, such as is the case if one of the spouses invests in the property of the other spouse and this has to be reimbursed. This is called compensation rights.

Also “final settlement clauses” are common in prenuptial agreements. This entails that spouses agree to settle with each other as if they are married in community of property. The execution of such a clause can be complex. To ascertain whether a prenuptial agreement is still up to date, we recommend asking a lawyer to check the agreement.

How we can help

GMW lawyers has a team of specialists in family law who can help you achieve the best possible division of property.  If you have any questions, please contact us directly using the enquiry form below or +31 (0)70 3615048. Our family lawyers will be happy to support and advise you.

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