A divorce covenant is the agreement in which separating spouses record their arrangements on the division of property, spousal maintenance, pension and the family home. It is filed with the petition and attached by the court to its order.
Legal basis
Article 1:100 of the Dutch Civil Code provides that spouses have equal shares in the dissolved community unless otherwise agreed. Article 1:157 governs spousal maintenance and Article 1:159 permits a non-modification clause, by which the parties agree that maintenance cannot be adjusted even if circumstances change. Such a clause can be set aside only where a change is so far-reaching that maintaining it unchanged would be unacceptable by standards of reasonableness and fairness. Article 1:401 contains the ordinary ground for modification. Where there are minor children, a parenting plan is compulsory under Article 815(2) of the Code of Civil Procedure.
How it works in practice
A sound covenant sets out not only what each party receives but also when and how. For the home this means the transfer, the bank’s release from joint and several liability, and the period within which that must be arranged. For maintenance it means the basis of calculation, indexation and the moment of review. Attachment to the court order makes the covenant enforceable, so that compliance can be pursued without fresh proceedings.
Where it goes wrong
A non-modification clause is often included without explanation and later becomes a millstone on loss of income. A second error is a housing arrangement without a condition of bank cooperation, leaving the departing partner still liable. Third, undisclosed assets remain a recurring theme; Article 3:194(2) awards the concealed share entirely to the other party.
Related terms
The covenant connects to the joint divorce petition, pension equalisation and the parenting plan.
Would you like a covenant that holds up later? Our divorce lawyers draft it and test the consequences.
