2 Is there a statutory matrimonial property regime and if so, what does it provide?

2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

From 1 January 2018, a limited community of property regime will apply in the Netherlands, under which assets acquired during the marriage and any associated debts are part of the community of property – (see Art. 1:94 para. 1 BW). Assets that are not part of the community of property include those acquired under inheritance law or as a gift, pension rights and survivor’s pensions covered by the Act on Equalisation of Pension Rights in the Event of Separation. This regime applies to marriages contracted on or after 1 January 2018 or to spouses who annul an existing prenuptial agreement after that date and were married under the statutory regime. The community of property also includes assets jointly owned by the spouses before marriage (e.g. while living together). A special scheme applies if one of the spouses runs a business – see Art. 1:95a BW.

For marriages contracted before 1 January, the previous statutory regime will remain in effect. The previous statutory regime consists of a comprehensive community of property. All assets which the spouses owned at the beginning of the marriage and all assets which they acquired thereafter belong to the community property so long as the community is not dissolved. Assets which are acquired by inheritance or gift and which shall, according to the last will of the deceased or the intention of the donor, remain outside the community (also called an exclusion clause), pension rights as intended in the "Act on Equalisation of Pension Rights in the Event of Separation" and surviving dependants' pensions do not belong to the community. Assets (and debts) that are exclusively connected to one of the spouses do not fall within the community either (see Art. 1:94 para. 5 BW). On the basis of case-law, special pension rights and compensation for immaterial damage are counted among the separate assets. Connexity is not readily accepted in other cases. Fruits of separate assets also belong to the separate estate (see Art. 1:94 para. 6 BW). All debts entered into by each of the spouses with the exception of debts concerning the separate assets also belong to the community and are to be paid out of the community assets (see Art. 1:94 para. 7 BW).

2.2. Are there legal assumptions concerning the attribution of property?

If during the divorce proceeding there is a dispute concerning to whom an asset belongs and neither of the spouses can prove his/her right to that asset, then that asset is designated as a common asset, but this rule may not work to the disadvantage of creditors (see Art. 1:94 para. 8 BW).

2.3. Should the spouses establish an inventory of assets? If so, when and how?


2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

Assets acquired in name (e.g. real properties and shares in an NV (public liability company) or BV (limited liability company)) are administered by the spouse in whose name they were acquired. All other assets belonging to the community property may be administered by each spouse separately (see Art. 1:97 BW). The matrimonial home may only be disposed of with the consent of both spouses (see Art. 1:88 BW). Consent is also required for establishing a mortgage on the matrimonial home. If the other spouse, due to absence or other cause, cannot give his/her approval or he/she refuses to give approval, the judge can give the consent. If it later appears that the consent is missing, the other spouse can invoke the invalidity of the legal act (see Art. 1:89 BW) within a period of 3 years (see Art. 3:52 BW).

2.5. Are any legal transactions made by one spouse also binding on the other?

See the answer to 2.4 above.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Each spouse is jointly and severally liable along with the other spouse for household debts and the costs of care and upbringing of the children during the marriage (see Art. 1:85 BW). This rule applies regardless of which regime the spouses were married under.

See for the household debts answer 2.5. and for the other debts answer 2.1. Creditors can seek recovery from the entire estate of the spouses. If one spouse paid a debt of the community from his/her private estate, then he/she is entitled to compensation (see Art. 1:95 BW). A spouse's private debt can be recovered from the community during the marriage, but the other spouse is entitled to indicate to the creditor the liable spouse´s own assets, from which the debt can be recovered. If a private debt is satisfied from the community, then the liable spouse is obliged to compensate the community (see Art. 1:96 para. 8 BW).