Getting married is what you do when you are madly in love with each other. Unfortunately, it happens often enough that after a while, people no longer want to be married to each other. Divorce does not usually go as smoothly as entering a marriage. In many cases, people argue about almost everything involved in a divorce. One of these things is property. Who is entitled to what if you and your partner separate?
Several arrangements can be made when you enter into the marriage, which has a significant impact on the property of you and your (former) partner during and after the marriage. You would be wise to think carefully about these before the marriage, as they can have far-reaching consequences. This blog discusses the different matrimonial property regimes and their consequences concerning ownership. It should be noted that all that is discussed in this blog applies similarly to a registered partnership.
Community of goods
Under the law the legal community of property automatically applies when parties marry. This has the effect that all property owned by you and your partner belongs to you jointly from the moment of marriage. However, it is important here to distinguish between marriages before and after 1 January 2018. If you married before 1 January 2018, a general community of property applies. This means that ALL property belongs to you together. It does not matter whether you acquired it before or during the marriage. This is no different when it comes to a gift or inheritance. When you subsequently get divorced, all property must be divided. You are both entitled to half of the property. Did you get married after 1 January 2018? Then the limited community of property applies. Only the property you acquired during the marriage belongs to you together. The properties from before the marriage remain of the partner to whom they belonged before the marriage. This means that you will have less property to divide upon divorce.
Do you and your partner want to keep your property intact? If so, you can enter into prenuptial agreements at the time of marriage. This is simply a contract between two spouses in which agreements are made about property, among other things. A distinction can be made between three different types of prenuptial agreements.
The first possibility is cold exclusion. This involves agreeing in the prenuptial agreement that there is no community of property at all. The partners then arrange that their incomes and property do not flow together or are not set off in any way. When a cold exclusion marriage ends, the ex-partners have little to divide. This is because there is no joint property.
Periodic settlement clause
In addition, the prenuptial agreement may contain a periodic settlement clause. This means that there are separate assets, and therefore property, but that income during the marriage must be divided annually. This means that during the marriage, it must be agreed each year what money was earned that year and what new items belong to whom. Upon divorce, therefore, in that case, only the belongings and money from that year need to be divided. In practice, however, spouses often fail to do the settlement annually during their marriage. As a result, at the time of divorce, all the money and things bought or received during the marriage still have to be divided. Since it is difficult to ascertain afterwards which property was obtained when, this is often a point of discussion during the divorce. It is therefore important, if a periodic settlement clause is included in the prenuptial agreement, to actually carry out the division annually.
Final settlement clause
Finally, it is possible to include a final calculation clause in the prenuptial agreement. This means that, if you get divorced, all property eligible for settlement will be divided as if there was a community of property. The prenuptial agreement often also stipulates which properties fall within this settlement. For example, it can be agreed that certain property belongs to one of the spouses and does not need to be settled, or that only the property acquired at the time of the marriage will be settled. The properties covered by the settlement clause will then be divided by halves upon divorce.
Would you like advice on the different types of marital property arrangements? Or do you need legal guidance on your divorce? Then contact Law & More. Our family lawyers will be happy to help you!