On January 1, 2018, a new matrimonial property 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, but also to expats of other nationalities who make the Netherlands their first
Situation Until January, 1 2018
Until January 1, 2018, the system of general community property applied. There are very few countries in the world that have this system. It meant that all property and debts of the spouses became joint property and debts – also all the property and debts they had before getting married. All inheritances and gifts they received while married, also became joint property. Once the marriage ended, due to death or divorce, the entire community property was 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 become joint – and once the marriage ends due to death or divorce, they are 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 after September 1, 1992. According to this act, the law of the spouses’ first joint country of 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.
It of course remains the case that each country has 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 of your first joint country of residence. 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
An 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 Prenuptial Agreement
In the Netherlands, a prenuptial 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, before they are 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.
Future: EU Regulations
On January 29, 2019, a resolution regarding matrimonial property will enter into force in the European Union. It will help simplify the process of determining which national law applies to a marriage. The national laws will not be harmonized, only the way in which it is determined which national law applies.
The main rule will still be that, also after the resolution has entered into force, you can determine for yourself, in your (pre)nuptial agreement, which national law applies. 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. A civil law notary who specializes in international matrimonial property law can advise you on how to do this.