Matrimonial Property Regime in the Netherlands Marc Geleijns

Matrimonial Property Regime in the Netherlands Marc Geleijns, civil law notary training seminar for the Polish National Council of Notaries together with the European Notarial Network (ENN) Warsaw, 21 September 2020

Marriage: • Between ♂ and/or ♀ • Same sex marriage is possible • No religious ceremony before legal marriage • Minimum age: 18 • No polygamy Matrimonial Property Regime in the Netherlands

Marriage before 1 January 2018: comperhensive community of property acquired before or during marriage Exceptions: • Donations and inheritances but only if stipulated at the time of donation or in the last will • Some pension rights • Assets that are exclusively connected to one of the spouses Matrimonial Property Regime in the Netherlands

Marriage on or after 1 January 2018: limited community of property acquired during marriage Exceptions: • All donations and inheritances • Some pension rights • Revenues of privateley owned assets • Privately owned assets before marriage remain private property, but jointly owned assets belong to the community 50/50 Matrimonial Property Regime in the Netherlands

Matrimonial property in simplified form since 1 January 2018: Private assets partner 1 - Assets before marriage - Inheritances and donations Limited community of property 50/50 - Assets acquired during marriage - Assets jointly acquired before marriage* Private assets partner 2 - Assets before marriage - Inheritances and donations * Regardless the respective shares of the spouses in these assets: 50/50, 30/70, 10/90 etc. ! Matrimonial Property Regime in the Netherlands

Legal assumptions concerning attribution of property: Without proof: 50/50 (common asset) Inventory of assets is not required, but could prevent discussion/legal proceedings especially in case of divorce: It may be attached to the notarial deed containing the marital agreement Inventory of assets is especially helpful in case of substitiution of assets Matrimonial Property Regime in the Netherlands

Administration of the property: • Assets acquired in name • Other assets • Mortgage on the matrimonial home • Liability for debts • Houdehold debts and the costs of care and upbringing of the children • Other debts • compensation Matrimonial Property Regime in the Netherlands

Liability for debts: • Each of the spouses • Household debts • Upbringing of children Creditors may seek recovery from the entire estate. A spouse is entitled to compensation if a community debt is paid from his/her private estate. payment of private debt Private property payment of debt of the community Community of property compensation Private property compensation Matrimonial Property Regime in the Netherlands

How can spouses arrange their property regime? Depart from the statutary regime with a marital agreement: • Authentic instrument notarial instrument • Before or during the marriage • Free to choose the content of the agreement • Limited community of property • Exclusion of any community • Netting covenants • Periodical netting covenant • Final netting covenant • Not possible: • Exclusion of maintenance claims • Limitation of family protection rules Matrimonial Property Regime in the Netherlands

Example 1: Periodical netting covenant • Period 1 year Income Household costs Savings Result after setllement Spouse A 80 40 paid by A (pro rata) 40 A 30 A Spouse B 40 20 paid by B (pro rata) 20 B 30 B Matrimonial Property Regime in the Netherlands

Example 2: Final netting covenant at the end of marriage: Private property Community of property Spouse A 400 Result after setllement 750 A 1000 A + B Spouse B 100 750 B Matrimonial Property Regime in the Netherlands

Matrimonial property register: • Maintained at the clerk of court’s office • Place of marriage • Marriage outside of the Netherlands clerk of the court of The Hague • Public register • Legal effects or registration • During marriage one day after registration • Before marriage: date of marriage Matrimonial Property Regime in the Netherlands

Division of property rights: Consequences of divorce • Community of property 50/50 • Clothes, jewellery, professional and business equipment, papers and mementos • Distribution established in a divorce agreement or by the judge • Sometimes settlement payment (pursuant netting covenant in marital agreement) Matrimonial Property Regime in the Netherlands

Liability for existing community debts at the time of divorce: • A enters into a community debt community of goods • A is liable during marriage and after divorce • B becomes also jointly and severally liable after divorce, but a creditor can recover his claim against B from a community property allocated to B after divorce Matrimonial Property Regime in the Netherlands

Consequences of death: • Surviving spouse: 50% of the undivided community property • Estate of the deceased: 50% of the undivided community property • Special position and protection of the surviving spouse • Legal division of the estate • The right of use and the right of usufruct with regard to the matrimonial home • The right of usufruct on other assets

Which law is applicable to a couple’s property? • Before 1 September 1992 • • Choice of law Common nationality First common habitual residence Most closely connected state • Between 1 September 1992 and 28 January 2019 • The Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978 • From 29 January 2019 • European Regulation (EU) 2016/1103 of 24 June 2016 Matrimonial Property Regime in the Netherlands

Choice of law: Before or during the marriage in a marital agreement • Until 28 January 2019 • The law of the habitual residence of either spouse’or • The law of the nationality of either spouse; and • For real property: the law of the place where the property is located • From 29 January 2019 • The law of one of the States of which at least one of the spouses is a nation’; or • The law of the habitual residence of either spouse at the time of the choice Matrimonial Property Regime in the Netherlands

Competent authority in cases of disputes and other legal issues: • Jurisdiction for divorce • Dutch court • Legal actions brought, judgments given and acts issued on or after 29 January 2019 Council Regulation (EU) No 2016/1103 of 24 June 2016 • Notaries are not bound by these rules of jurisdiction! Matrimonial Property Regime in the Netherlands

Background information: CNUE website: www. notaries-of-europe. eu and www. coupleseurope. eu “The Polish bride” Dutch movie (1998) and a theater play Matrimonial Property Regime in the Netherlands