In divorce proceedings the Dutch court has to assess which law applies to the parties’ matrimonial property regime. If foreign law applies, the Dutch court will need advice on the substance and application of that law. If the matrimonial property regime is subject to Dutch law, the following applies.
The limited community of property has been automatically applicable in the Netherlands since 1 January 2018.
This limited community of property includes any and all items of property and debts the spouses acquire during the marriage. The community does not include inheritances and gifts. Nor does it include items of property and debts the spouses had acquired before the marriage. Upon dissolution of the community, any debts are to be paid from the community and the items of property are to be divided between the parties. If the debts cannot be paid from the community, they will be for the account of the spouse who is liable for them.
If the parties have concluded a prenuptial agreement, they may deviate from the limited community of property.
However, if the spouses married before 1 January 2018 without concluding a prenuptial agreement, the general community of property applies. This Dutch system was quite unique compared to other countries. That community not only included any and all items of property and debts the spouses acquired during the marriage, but also any inheritances and gifts (without exclusion clauses) and the parties’ premarital property and debts. In the event of a divorce, the community of property has to be divided in such a way that each spouse acquires 50% of the items of property and debts.
Pension rights may have been accrued during the marriage. In the Netherlands, the Dutch Equalisation of Pension Rights in the Event of a Divorce Act (Wet verevening pensioenrechten bij scheiding) regulates the division of old-age pensions in the event of a divorce.
In general, the old-age pension rights accrued during the marriage are to be shared equally. The law provides for a direct claim, on the part of the party entitled to equalisation, against the pension provider to acquire the pension share he or she is entitled to.
It is possible to diverge from this standard division by means of a prenuptial agreement or a divorce agreement. This can be done in the following four ways:
1. pension equalisation is excluded, e.g. because both parties have accrued approximately the same amount of pension;
2. the division is not made in equal shares but another percentage is agreed;
3. the parties agree on a different period (e.g. the pension accrued during cohabitation prior to the marriage is taken into account as well, or they agree a shorter period);
4. half of the old-age pension is definitively converted, together with the special survivor’s pension (see below), into an ‘individual entitlement to old-age pension’ for the ex-spouse (conversion).
Spouses are not only entitled to half of each other’s old-age pension, they are also entitled to the entire survivor’s pension accrued for them up to the date of the divorce. This means that in the event of death, the ex-spouse is entitled to the same amount of survivor’s pension as he or she would have received in the event of the other spouse’s death on the date of the divorce. This is also referred to as ‘special survivor’s pension’.
Advice for family law in the Netherlands
For advice on divorce and family law in the Netherlands, please contact Chantal van Baalen-van IJzendoorn at:
De Ruijterkade 143
1011 AC Amsterdam
Tel: +31 20 261 0002