Dividing the marital home in a Dutch divorce turns on three separate questions: what share each spouse owns, what the house is worth on the day it is actually divided, and who carries the mortgage afterwards. The first is answered by your matrimonial property regime, the second by the moment of division rather than the moment you separated, and the third by the bank, which is not bound by anything you and your former partner agree between yourselves.
Which property regime decides your share
Everything starts with how you married. For marriages concluded before 1 January 2018 without a notarial agreement, the default was the universal community of property (algehele gemeenschap van goederen): the house fell into the joint estate whoever was named on the deed, and so did the mortgage debt. For marriages concluded on or after that date the default is the limited community of property under art. 1:94 BW, in which each spouse keeps what they brought in. A flat one spouse owned alone before the wedding therefore stays that spouse’s private property, and the other acquires no share in it merely by marrying. The same rules apply to a registered partnership, because art. 1:80b BW declares the relevant provisions correspondingly applicable.
There is an important qualification for couples who bought together before marrying. Property the spouses already owned jointly falls into the limited community, so a flat bought as an unmarried couple becomes part of the joint estate on the wedding day. Where one of them had put in more than the other, the Supreme Court held on 21 March 2025 (Hoge Raad, ECLI:NL:HR:2025:436) that the debt reflecting that shift in wealth does not itself fall into the community, so the larger contribution is not halved. If you paid the whole deposit on a flat you bought together before the wedding, that judgment is the reason to raise it.
Where the house is in the community, art. 1:100 BW gives the spouses equal shares in the dissolved community, unless a prenuptial agreement or an agreement made in writing in view of the impending dissolution provides otherwise. Under a prenuptial agreement the deed and the agreement decide, and a periodic settlement clause that was never actually operated during the marriage can still produce a claim on the house under art. 1:141 BW.
The dissolution date and the valuation date are not the same day
Two dates matter and they are routinely confused. The community is dissolved by operation of law when the divorce petition is filed, not when the decree is granted or entered in the register (art. 1:99 BW). That date fixes what belongs to the joint estate: income earned and debts incurred after it are private.
What the house is worth is a different question, and the settled rule is that the valuation date is the moment of the actual division, unless the spouses have agreed another date or reasonableness and fairness require one. In a market that moves, this decides real money: a rise between separation and transfer is shared, and so is a fall. Because divorce proceedings often run for a year or more, the sensible step is to fix the valuation date expressly in the divorce covenant (echtscheidingsconvenant) rather than to leave it to be argued about later.
Three ways to deal with the house
There are only three outcomes. One spouse is allotted the property and buys the other out (toedeling). The house is sold to a third party and the net proceeds are divided. Or the spouses stay joint owners for a while, which is workable only as a deliberate, documented interim arrangement, because neither of them is released from the mortgage and either can demand division at any time under art. 3:178 BW.
The choice is usually made for the couple by two constraints rather than by preference: whether one of them can carry the mortgage alone on the bank’s terms, and whether the house is worth more or less than the debt on it.
The buyout: what the departing spouse is actually paid
The starting figure is the surplus value (overwaarde): the market value of the property at the valuation date, less the mortgage debt outstanding at that moment. In a community of property each spouse is entitled to half of it, and the spouse who keeps the house pays the other half in cash or by taking on a larger loan.
That figure is then adjusted, and the adjustments are where the disputes sit. Reimbursement claims for private money invested in the house come off first. So do any linked savings or investment policies, an endowment mortgage or a bank savings account, which are assets of the community in their own right and are not automatically netted against the debt. Where one spouse has continued to pay the whole mortgage since the separation, that is settled between them as well, usually against the reasonable use fee the occupying spouse owes for the other’s share. Agree the method before the appraisal, not after it.
The bank decides whether a buyout can happen
Both spouses are jointly and severally liable (hoofdelijk aansprakelijk) for the whole mortgage debt, and a divorce changes nothing about that. The departing spouse is released only if the lender grants a discharge from joint and several liability (ontslag uit hoofdelijke aansprakelijkheid), and the lender will grant it only if the remaining spouse passes its affordability test on a single income, under the lending rules in force at that time. Where the loan carries a national mortgage guarantee, the guarantor’s conditions apply on top.
Two practical consequences follow. Never sign a covenant that simply assumes the discharge will be given; make the allotment conditional on it, with a fixed period and an agreed fallback that the property is sold if the discharge is refused. And until the discharge is actually granted and the deed executed, the departing spouse remains fully liable to the bank for arrears, whatever the covenant says — a missed payment is registered against both names.
Private money put into a joint house
If you funded the deposit, the repayment of the mortgage or a renovation from money that was yours alone — an inheritance or gift with an exclusion clause, or property you owned before a post-2018 marriage — you have a reimbursement claim (vergoedingsrecht) against the community. Since 1 January 2012 art. 1:87 BW measures that claim by the investment doctrine (beleggingsleer): the claim tracks the value of the asset in proportion to what you put in, so it rises if the house has risen and falls if it has fallen. For investments made before that date the older, nominal approach may still govern, and the spouses may also have agreed something different.
The burden of proof is on the spouse making the claim, and it is where these claims are lost. What is needed is a paper trail: the deed of gift or the will containing the exclusion clause, the bank record of the transfer, the purchase price or the invoice for the work, and the date. A recollection that the money came from your parents will not carry the point ten years later.
When the house is worth less than the mortgage
Negative equity is divided in the same way as surplus value: in a community of property the residual debt (restschuld) is shared equally, and the spouse who takes the house on takes the whole debt with it, usually without any buyout payment and sometimes with a payment in the other direction. Where the loan carries a national mortgage guarantee and the sale is forced by the divorce, the guarantee scheme may absorb part of the residual debt on its own conditions, which is a reason to involve the lender early rather than to sell first and ask afterwards.
When the equal split can be departed from
Rarely, and not for the reasons people expect. Art. 1:100 BW gives equal shares, and the Supreme Court has held that a departure on grounds of reasonableness and fairness is reserved for highly exceptional circumstances; that one spouse earned more, paid more, or behaved badly during the marriage is not enough. The route that does work is narrower and statutory: a spouse who deliberately conceals, hides or misappropriates an asset of the community forfeits their share in that asset to the other under art. 3:194 lid 2 BW. Undisclosed accounts and undeclared savings are what that provision is for.
If your former partner will not cooperate
Joint ownership does not mean deadlock. Any co-owner may demand division at any time, and where the parties cannot agree the court determines the division itself under art. 3:185 BW, including by ordering that the property be sold and the proceeds divided. Where a sale is needed and one spouse obstructs it, the court can authorise the other to sell the property alone under art. 3:174 BW, and in urgent cases that authorisation can be sought in summary proceedings. A spouse who refuses viewings or blocks a reasonable offer risks bearing the cost of the delay.
Living in the house while the divorce runs
During the proceedings the court can grant one spouse the exclusive use of the marital home as a provisional measure under art. 822 Rv, most often the parent with whom the children mainly live. After the divorce has been entered in the register of civil status, art. 1:165 BW allows the spouse who was living there to continue doing so for six months, whoever owns the property. The occupying spouse normally owes the other a reasonable use fee (gebruiksvergoeding) for being excluded from their own share, which is commonly set off against the mortgage payments. Our separate article on who stays in the family home sets out how that right is applied.
Tax and mortgage interest relief
Two points are worth flagging, both of which belong with a tax adviser rather than in the covenant’s legal clauses. Allotting the marital home in the division of a matrimonial community between spouses is exempt from property transfer tax, so a buyout does not trigger a charge that a normal purchase would. And the spouse who moves out keeps the interest deduction on the former home for a limited period after leaving — currently two years under the Income Tax Act — after which it ends, while the rules on reinvesting surplus value affect the deduction on the next house. Have the figures checked before the covenant is signed: the tax position often changes what a fair split looks like.
What to settle first
Establish which regime governs your marriage and whether the house is in it at all. Fix the valuation date in writing. Have the property valued by an appraiser both of you appoint, and agree in advance that the report binds you. Ask the lender, before anything else is agreed, whether it will grant the discharge and on what income. And collect the evidence for any private money you put into the house while the documents are still findable.
Law & More advises Dutch and international clients from Eindhoven and Amsterdam on the property side of a divorce. Our family law team works with a divorce lawyer on the covenant, the buyout and the discharge from the mortgage, and litigates the division where agreement is out of reach.
FAQ: division of the home in divorce
Who is allowed to stay in the house during the divorce?
This depends on the circumstances. A judge can issue a provisional ruling (voorlopige voorziening) granting one partner exclusive use of the home for the duration of the proceedings. The decision is usually based on the interests of any children and the financial situation of both parties. After the divorce is finalised in the registers, the resident partner may stay for up to six months, unless agreed otherwise.
What if my ex-partner stops paying the mortgage?
If you are both jointly and severally liable (hoofdelijk aansprakelijk), the bank can demand full payment from you, even if you have already paid your share. It is crucial to record payment agreements in a divorce covenant. If you pay your ex-partner’s share, you acquire a claim against them, but you remain liable to the bank in the meantime.
Must the house always be sold?
No, selling is not the only option. There are generally three scenarios:
- One partner takes over the house and buys out the other.
- The house is sold to a third party, and proceeds are shared.
- In very rare cases, partners remain joint owners for a period (though this is generally inadvisable due to ongoing financial entanglement).
How is the value of the home determined?
The value is usually established via an independent appraisal (taxatie). Partners can choose an appraiser jointly. If you cannot agree, the court can appoint an expert. The value is generally determined based on the date of the actual division, not the date of separation.
What happens to the surplus value (overwaarde)?
In a community of property marriage, the surplus value (market value minus mortgage debt) is divided equally. If one partner keeps the house, they pay 50% of this surplus to the other. If sold, the net proceeds are split 50/50 after costs.
What if the house is “underwater” (negative equity)?
Negative equity (residual debt) is also shared 50/50 in a community of property. If one partner takes over the house, they must take on the entire debt, and usually, no buyout payment is made (or the departing partner pays their share of the debt to the remaining partner to be released).
Do I get my money back if I paid for renovations with private funds?
Possibly, yes. If you can prove the investment came from private funds (e.g., inheritance with an exclusion clause or pre-marital savings), you may have a right of reimbursement (vergoedingsrecht). Under the beleggingsleer, this reimbursement may include a share of the house’s appreciation in value.
What if we have prenuptial agreements?
If you have prenuptial agreements (huwelijkse voorwaarden), the house might be the private property of one spouse, meaning the other has no claim to the value. However, you must check for set-off clauses (verrekenbedingen) or joint investments, which might still give rise to financial claims. Always have a lawyer review the specific terms.
How do I get released from joint mortgage liability?
You can only be released if the bank consents. This typically happens via:
- Transfer: Your ex takes over the mortgage fully (if their income allows).
- Refinancing: Your ex takes out a new mortgage to pay off the old one.
- Sale: The house is sold, and the debt is repaid.
If the bank refuses, you remain liable.
Can a judge deviate from the 50/50 split?
Yes, but only in exceptional cases based on “reasonableness and fairness” (redelijkheid en billijkheid). The threshold for this is very high. It might apply where one partner has grossly disadvantaged the community, but generally, the 50/50 rule is strict.
What if my ex inherited the house?
If the house was inherited with an exclusion clause (uitsluitingsclausule), it does not fall into the community of property. The heir is the sole owner, and the other spouse has no claim to half the value. Since 1 January 2018 inheritances and gifts stay private by default, so no clause is needed for a marriage from that date; for an earlier marriage an inheritance without an exclusion clause did fall into the community.
How long does the division take?
If partners agree, it can be settled in a few months. If there is a dispute, or if the house must be sold in a slow market, it can take a year or more. Court proceedings regarding division can significantly extend this timeline.
What happens to the furniture?
Household contents (inboedel) in a community of property are divided. Usually, partners split items by mutual agreement. Disputes can be settled by a judge. Items owned prior to marriage or inherited personally generally remain private.
Can I stay in the house if I have the children?
The interests of the children weigh heavily. A judge may grant the primary carer use of the home temporarily (voorlopige voorziening). However, this does not grant permanent ownership. The financial reality (can you afford to buy out your ex?) will determine if you can stay long-term.
What if my ex refuses to sell the house?
If the court orders a sale and your ex refuses to cooperate, you can request “substitute authorisation” (vervangende toestemming) from the judge. This allows you to proceed with the sale (and sign the deed) without your ex’s signature.
Do we both have to agree on the buyer?
Yes, as joint owners, you must both agree to the sale price and the buyer. If one party unreasonably blocks a sale at a fair market price, the court can intervene to force cooperation.
Are there tax consequences?
Dividing the marital home between partners is generally exempt from property transfer tax (overdrachtsbelasting). However, mortgage interest relief (hypotheekrenteaftrek) rules change after divorce, specifically regarding the “divorce scheme” (scheidingsregeling) and the requirement to pay off the mortgage to retain tax benefits.
Can I be forced to buy the house from my ex?
No. You cannot be forced to take over the house if you do not want to or cannot afford it. If neither party wants the house, it must be sold to a third party.
What if the house is only in my ex’s name?
If the house is in the community, it generally does not matter whose name is on the deed and the value is shared equally. For a marriage from 1 January 2018 a house one spouse owned alone beforehand is not in the community at all, so the name on the deed then matters a great deal. If you have prenuptial agreements, the name on the deed is crucial evidence of ownership.
Do I need a lawyer for the house division?
While not mandatory for the division itself, it is highly recommended. The financial risks are high, and the regulations regarding mortgages, taxes, and private investments are complex. A lawyer ensures the settlement is legally watertight and that you are effectively released from liability.
