A prenuptial agreement is a notarial deed in which spouses or registered partners depart from the statutory matrimonial property regime. It can be made before the marriage or at any point during it.
Legal basis
Articles 1:114 and following of the Dutch Civil Code require a notarial deed; an agreement in any other form has no effect. The deed is registered in the public matrimonial property register at the court, and only from that registration can it be invoked against third parties such as creditors.
Agreements made during an existing marriage no longer require the approval of the court, which was abolished in 2012, but the notary will assess whether creditors are prejudiced.
What is usually arranged
The two common models are a full exclusion of any community, in which each spouse keeps their own assets and debts, and a periodic settlement clause, under which the spouses agree to settle savings from income annually. A final settlement clause on divorce is also frequently used, often combined with a business exclusion where one spouse owns a company.
Since 1 January 2018 the statutory default is already a limited community: assets and debts acquired before the marriage, and gifts and inheritances, remain private. That has made the reason for a prenuptial agreement narrower, but not redundant, particularly where a business, a family gift or an unequal debt position is involved.
Where it goes wrong
The periodic settlement clause is the classic failure. Almost nobody actually settles annually, and the law then attaches a heavy consequence: on divorce the assets are treated as if there had been a community after all, which is precisely the outcome the agreement was meant to avoid. Anyone with such a clause should either carry it out each year and record it, or have the deed amended.
Related terms
See also community of property, joint divorce petition and spousal maintenance.
Our family law practice reviews existing agreements and advises on their consequences at divorce.
