On the first of January 2018 a new matrimonial property law Act entered into force in the Netherlands. This new law applies to all marriages that are entered into after this date. It applies to all Dutch nationals who marry other Dutch nationals while they live in the Netherlands, but also to expats of other nationalities who make the Netherlands their first joint country of residence after getting married.
Situation Until January 1, 2018
On marriages that started before January 1, 2018, the system of general community property applies, that is if Dutch matrimonial property law applies on the marriage. There are only very few countries in the world that have this system. It means that all property and debts of the spouses become joint property and debts – also all the property and debts they had before getting married. All inheritances and gifts they receive while married, also become joint property. Once the marriage ends, due to death or divorce, the entire community property must be split 50-50.
Situation as of January 1, 2018
A limited community of property applies to marriages that are entered into after January 1, 2018. Not everything becomes joint anymore. Property and debts from before the marriage remain with that particular person. Inheritances and gifts acquired after marriage go only to the receiver. All other property and debts that are acquired during the marriage as well as the fruits thereof become joint – and once the marriage ends due to death or divorce, only the limited community of property is split 50-50, while each spouse retains their personal property as well.
Does this law also apply to non-Dutch spouses? This question is not so easy to answer. It depends, among others, on the spouses’ nationality/ies, when their marriage took place and where they first settled after getting married.
In the Netherlands, the Hague Matrimonial Property Act 1978 applies to marriages entered into between September 1, 1992 and January 29, 2019. According to this act, the law of the spouses’ first country of joint residence after becoming married applies to the matrimonial property regime. Many people think that the country in which the couple gets married applies, but this is, in fact, irrelevant – at least from a Dutch perspective.
On January 29, 2019, a EU-resolution regarding matrimonial property entered into force in the European Union. There also the country of the first joint residence is the decisive factor.
It of course remains the case that a country that is not a party in the EU-regulation can have its own laws on determining which national law applies to a marriage, as a consequence of which – in international situations – multiple legal systems could apply to the
same marriage. Systems that could be conflicting.
Better to Do About It Yourself
Fortunately, you do not have to sit back and wait and see what the law says about your marriage. You can make your own arrangements by means of an agreement – preferably prenuptial; before actually getting married. In this agreement, you can determine which national law applies to your marriage. You can opt for the law of the country of nationality of one of you, or for
the law the country of residence of one of you. By putting this in writing, you avoid uncertainty in the future.
This will help simplify the process in case of divorce, but also in case you are confronted with creditors regarding debts only one of you has entered into.
However, this choice of applicable law might not be accepted in another country. Which is why it is important to include the rules that will apply to the spouses in the agreement – and to explain why they are being included and what they are meant to accomplish.
Changes during the Marriage
A marital agreement can also be drawn up during the marriage. This could be a lot more complicated than doing it before getting married. First, you will have to determine which national law already applies to the marriage, while you will have to determine the actual property and debts – thereby also determining what is private and what is (partially) community property. Property that is located abroad might be subject to the law of that country. And finally, it will have to be determined whether entering into an agreement on matrimonial property, or changes made to an existing agreement, will have any fiscal consequences (such as a gift tax obligation).
Formalities Marital Agreement
In the Netherlands, a marital agreement must be written down in a deed drawn up by a civil law notary. As an impartial advisor, the notary will draw up a fair agreement that takes into account the interests of both spouses. The deed will have to be signed by the spouses in the presence of the notary and – in case of a prenuptial agreement - before they become married. Once it has been signed and the marriage has taken place, the deed will be entered in the public matrimonial property registry that is maintained by the court. Only then can it be invoked against third parties.
In short: if you marry someone of a nationality other than your own, then you should draw up a prenuptial agreement. Be sure to include a choice of applicable law and to make the formulation of, and motivation behind, each of your arrangements as clear as possible so that they can be implemented in an international context as well. We shall be glad to advise you on how to do this.