1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

On the basis of Art. 10:52 Burgerlijk Wetboek (BW; Civil Code) there applies for the Netherlands the Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978 (HC), which entered into effect as of 1 September 1992 and applies to marriages solemnised between 1 September 1992 and 28 January 2019. Different rules apply for marriages solemnised before 1 September 1992. No bilateral conventions have been concluded by the Netherlands. However, there apply separate interregional rules with regard to the overseas areas belonging to the Kingdom of the Netherlands in the Caribbean. If no choice of law is made, then the applicable law is the law of the first common habitual residence of the spouses, when the spouses do not have common nationality (see Art. 4 para. 1 HC). For spouses with a common nationality (see Art. 15 HC) under certain conditions their national law applies (see Art. 4 para. 2 and Art. 5 HC). If the spouses have neither a first common habitual residence nor a common nationality, then there applies the law of the state with which, on the basis of all the circumstances of the case, the spouses are most closely connected (see Art. 4 para. 3 HC). The applicable law can change through naturalisation, immigration and after 10 years of residence in a particular country (see Art. 7 HC). This change has only effect for the future (Art. 8 HC). The change can be prevented by making a choice of law or concluding a marital agreement.

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.

• The spouses’ first common habitual residence after the conclusion of the marriage.
• Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
• Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.

By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3), but only if they had their habitual residence longer in that State than in their first common habitual residence.

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

The spouses can, before or during the marriage, opt for a specific law to be applicable to their matrimonial property. Until 28 January 2019, they can opt for the law of the habitual residence of either spouse or for the law of the nationality of either spouse and for real property for the law of the place where the property is located (see Art. 3 and Art. 6 HC). The designation of a specific law must be expressly agreed or must unambiguously derive from a marital agreement (see Art. 11 HC). The latter is the case when reference is made to specific articles of the law in a marital agreement. The form of the choice of law follows the formal requirements for marital agreements and is governed by either the chosen law or the place where the choice of law is made (see Art. 13 HC). If during the marriage a choice of law is made or changed, then it applies as a starting point that there must be a settlement on the existing regime between the spouses.

Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23.

Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.

These new rules apply to all spouses whenever they were married, if they make the choice after 29 January 2019.

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?

No

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).

3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?

The spouses can depart from the statutory regime by concluding a marital agreement. The parties are free to choose the content of the agreement, but in practice one chooses between a limited community of property and an exclusion of any community, which is often combined with netting covenants. Differentiation must be made between the periodical netting covenant and the final netting covenant when the marriage is terminated. It is impossible to exclude maintenance claims against one another and limit the family protection rules, such as the need for the other spouse's consent for the disposal of the matrimonial home (see Art. 1:88 BW).

3.2. What are the formal requirements and who should I contact?

The marital agreement must be established in the form of an authentic instrument. For addresses of civil law notaries in the Netherlands, see: http://www.notaries-directory.eu.

3.3. When may the contract be concluded and when does it come into effect?

The marital agreement can be concluded before or during the marriage (see Art. 1:114 BW). In the first case it enters into effect at the time of solemnisation of the marriage, in the second case for the spouses one day after the execution of the instrument.

3.4. May an existing contract be modified by the spouses? If so, under what conditions?

It is possible to amend the agreement during the marriage, see further the answers to 3.2. and 3.3.

3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?

In the Netherlands the marriage contract concluded during marriage is binding one day after the execution of the instrument, see art. 1:120 BW. Therefor it is not possible to conclude a marriage contract during marriage with retroactive effect.

4.1. Do one or more matrimonial property registers exist in your country? Where?

The matrimonial property register is maintained at the clerk of court´s office. Marital agreements must be registered with the court that has territorial jurisdiction over the place where the marriage is solemnised. If the marriage is entered into outside of the Netherlands, then the marital agreement must be registered with the Clerk of the Court of The Hague.

4.2. Which documents are registered? Which information is registered?

A copy of the authentic instrument containing the marital agreement is recorded in the register.

4.3. How and by whom can the information in the register be accessed?

Anyone may inspect the register and can, in exchange for payment, obtain a copy of the marital agreement.

4.4. What are the legal effects of registration (validity, opposability)?

An agreement made during the marriage can be opposed to third parties in good faith 14 days after registration of the agreement in the register (see Art. 1:120 BW). Prenuptial agreements made before the solemnisation of the marriage and recorded in the register are opposable as of the date of the marriage.

4.5. Can a matrimonial contract concluded in a foreign state according to foreign law be registered in your country? If yes, under which conditions or formalities?

In the Netherlands it is possible to register a matrimonial contract in the matrimonial register, which is made abroad. The registration is only possible if a sworn translation of the contract in the Dutch language is made. See for further information.

5.1. How is the property (rights in rem) divided?

The community of property is dissolved by divorce (see Art. 1:99 BW). In principle the spouses are each entitled to one-half of the assets. After the dissolution of the community, each spouse can ask for the return of his/her clothes, jewellery, professional and business equipment, papers and mementos belonging to his/her family (see Art. 1:101 BW). The distribution can be established in a divorce agreement or by the judge (see Art. 3:185 BW). It can be requested at any time (see Art. 3:178 BW). Based on a netting covenant in the marital agreement, in the event of divorce there must also be a settlement (in the form of a monetary compensation) between the spouses.

5.2. Who is liable for existing debts after the divorce/separation?

After divorce, the ex-spouse remains liable for the entirety of the community debt which he/she entered into during the marriage. The other ex-spouse becomes jointly and severally liable for that debt after dissolution of the marriage. The creditor can only recover this debt from the community property that is allocated to the other ex-spouse. The debt can also be recovered from the private estate of the ex-spouse who entered into the debt, but not from the private estate of the other ex-spouse (see art. 1:102 BW).

5.3. Does one spouse have a claim to an equalisation payment?

5.3. The distribution of the community can take place by distributing the assets in kind or by paying a compensation in money. Distribution can be requested at any time (see art. 3:178 BW).

If the applicable matrimonial property regime is community of property, then the surviving spouse is entitled to one-half of the undivided community property, while the other half goes into the estate of the deceased. The surviving spouse holds a special position in the inheritance law: according to the law, if he/she is an heir together with children, all of the assets from the deceased's estate are allocated to him/her under the obligation to pay off the debts (see Art. 4:13 BW et seq.). If in the deceased's will it is determined that the surviving spouse shall not inherit anything or he/she is otherwise in need, he/she can request from the heirs the right of use and the right of usufruct with regard to the former matrimonial home (see the Art. 4:28 and Art. 4:29 BW) and request a right of usufruct on other assets (see Art. 4:30 BW).

No, see further answer to question 1.

The above is applicable mutatis mutandis to registered partners* (see Articles 1:80a – 1:80g BW). The rules of private international law are substantively different, see for this articles 10:70 – 10:85 BW.

* In the Netherlands, individuals of both the same and different sex can solemnise a marriage with one another and enter into a registered partnership.

The BW contains no regulations for unregistered cohabitants. However, cohabitants may conclude a cohabitation contract, which is generally established in an authentic instrument. Cohabitants also often make last wills for the benefit of one another.

The distribution of the community can be combined with a divorce petition. The jurisdiction for the request for distribution follows the rules concerning the jurisdiction for divorce (see Art. 4 para. 3 Wetboek van Burgerlijke Rechtsvordering = Code of Civil Procedure) as regulated in Brussels II bis. If the distribution of the community property is not combined with a divorce proceeding (for example a distribution of property is requested after a decree of divorce has been issued), Article 2 of the Code of Civil Procedure applies and the Dutch court shall have jurisdiction if the defendant has his/her habitual residence in the Netherlands.

For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.

This Regulation provides that the competent authorities will be as follows:

• For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
• In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
• In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
  • of the spouses’ common habitual residence at the time the court is seised; or failing that
  • of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
  • of the habitual residence of the respondent; or failing that
  • of the spouses’ common nationality.

With the exception of any litigation, notaries are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract, a choice of law agreement or an authentic act wherein the matrimonial property is divided or distributed.