Limited community of property in the Netherlands: what applies to your marriage

If you married in the Netherlands on or after 1 January 2018 without signing a notarial agreement, you are married in a limited community of property (beperkte gemeenschap van goederen). The question is always the same: which assets are shared, which stayed yours alone, and what must you prove if the marriage ends? This article answers that, and sets out what international couples should arrange differently.

What changed on 1 January 2018

Until 31 December 2017 the Dutch default was the algehele gemeenschap van goederen, a universal community. On marriage, virtually everything each spouse owned or owed merged into one joint estate: the flat one spouse bought a decade earlier, the other’s student debt, and every inheritance and gift unless the donor had actively excluded it.

The Wet beperking wettelijke gemeenschap van goederen (Stb. 2017, 177) replaced that default for marriages concluded from 1 January 2018, in art. 1:94 BW. Spouses now share what they build up together, not what each brought to the marriage or received from their own family. The community is limited, not abolished: a substantial joint estate still arises automatically. The same rules apply to registered partnerships, because art. 1:80b BW declares the relevant titles of Book 1 correspondingly applicable.

Marriages before 1 January 2018

The legislation has no retroactive effect. If you married earlier without a prenuptial agreement, you remain in the universal community until you change regime by notarial deed. Two couples divorcing in the same month can face different divisions, depending only on whether they married in December 2017 or January 2018.

What falls inside the limited community

Under art. 1:94 BW the community comprises everything that already belonged to the spouses jointly before it began, together with everything either of them acquires from its start until its dissolution: salaries, savings, a house bought during the marriage, investments from marital income, and any asset in one spouse’s name but paid for from joint funds.

The inclusion of pre-marital joint property catches couples out. If you bought a flat together before the wedding and one of you paid the whole deposit, it enters the community in equal shares on the day you marry. The Supreme Court addressed the consequences on 21 March 2025 (Hoge Raad, ECLI:NL:HR:2025:436): where one spouse had a claim against the other in respect of the shift in wealth arising from that acquisition or from repayment of the associated debt, the debt does not fall into the community under art. 1:94 BW. The larger contribution is therefore not halved.

What stays outside the community

Assets owned before the marriage

Anything one spouse owned alone before the wedding day stays that spouse’s private property: a flat, a share portfolio, a shareholding. Marrying does not bring it in.

Gifts and inheritances

This is the most significant reversal. Art. 1:94 BW places assets acquired by intestate succession, legacy, testamentary charge or gift outside the community, whether received before or during the marriage. Under the old law they fell in unless the testator or donor inserted an uitsluitingsclausule (exclusion clause). That clause is now unnecessary, and the mirror-image insluitingsclausule is what a donor must use to make the asset shared.

The same article gives an exclusion clause real force: where a will or deed of gift states that the asset and its fruits fall outside the community, they stay outside even if the spouses have agreed in their prenuptial agreement that inherited or gifted assets fall in. Parents can therefore protect family money unilaterally. The fruits of a private asset are also private, so rent from an inherited property and dividends on inherited shares stay out, as does a compensation claim replacing a private asset.

Assets bought partly with private money

Art. 1:95 BW deals with mixed funding. An asset a spouse acquires other than by gift stays outside the community if more than half of the consideration comes from that spouse’s private property. If private funds cover half or less, the asset falls in and the contributing spouse acquires a reimbursement claim. Such claims are calculated under art. 1:87 BW, which since 1 January 2012 applies the beleggingsleer: the claim moves with the asset’s value rather than being frozen at the sum invested.

The record-keeping problem

Private and community property now sit side by side in one household, and someone has to show which is which, sometimes many years later. Art. 1:94 BW settles that against you if you cannot: where spouses dispute which of them an asset belongs to and neither can prove their right, the asset is treated as community property. The presumption does not operate to the detriment of creditors.

A second rule sits in art. 1:96 BW: a spouse who tells a creditor that an asset it is pursuing does not belong to the community bears the burden of proving it. Weak records cost you money on two occasions, and only one involves your spouse. From the day of the marriage, that means:

• Draw up a dated schedule of what each spouse owns and owes at the date of marriage, with documents.
• Keep inherited and gifted money in a separate account in one name, out of the joint current account.
• Keep the will or deed of gift and the bank record of the transfer for as long as the marriage lasts.
• Where private money buys or improves a joint asset, record the amount, the date and the total purchase price: the art. 1:87 BW calculation needs the proportion, not the sum alone.
• Keep paperwork for private assets sold and replaced: substitution must be traceable through the whole chain.

Business assets and the compensation owed to the community

A business one spouse owned before the marriage stays outside the community, as does an inherited or gifted shareholding. That looks like clean protection, but art. 1:95a BW attaches a price.

Where a business falls outside the community, a reasonable compensation for the knowledge, skills and labour a spouse has applied to it accrues to the benefit of the community, so far as such compensation has not already benefited both spouses another way. The article extends this to a business run through a partnership or legal entity where the entitlement falls outside the community and the entitled spouse is to a predominant extent able to determine that the profits reach them. A company structure does not switch the obligation off.

An entrepreneur who leaves profits inside a company and pays themselves a low salary may owe the community a substantial sum on divorce or death. If a market-conform remuneration has been paid into the joint account, the compensation may be nil. Lower courts quantify the figure by comparing what was drawn against an arm’s-length remuneration, as the Amsterdam Court of Appeal did in Gerechtshof Amsterdam, ECLI:NL:GHAMS:2021:1828. Pay yourself a defensible, documented salary and keep company and private accounts separate.

Debts, including debts from before the marriage

Art. 1:94 BW deals with liabilities in the same article. The community comprises joint debts that arose before it existed, debts relating to assets the spouses already owned jointly, and all debts of either spouse arising during the community. Excluded are debts relating to assets outside the community, debts belonging to an estate to which a spouse is entitled, and debts arising from certain gifts and arrangements under Book 4.

A student loan or business debt one spouse incurred alone before the wedding therefore does not become the other spouse’s debt. But it does not put the other spouse’s assets out of reach. Art. 1:96 BW allows a creditor of one spouse’s debt to enforce against both the community assets and that spouse’s private assets, whether or not the debt fell into the community. Two protections soften this. The other spouse may point the creditor to sufficient private assets of the debtor, in which case community assets cannot be sold. And recourse against community assets for a debt outside the community is limited to half the proceeds of the asset sold, the other half accruing to the non-debtor spouse. That spouse may also take the asset over by paying half its value from their own property.

A pre-marital debt no longer makes your spouse a debtor, but it can still cost the joint estate half the value of a jointly owned asset. Recording what each spouse owes at the date of marriage matters as much as recording what each owns.

Divorce

Under art. 1:99 BW the community is dissolved by operation of law when the divorce petition is filed, not when the decree is granted or registered. That date fixes what belongs to the community; income earned and debts incurred afterwards are private. Dissolution on a filed petition can only be invoked against third parties who were unaware of it if the petition was entered in the huwelijksgoederenregister.

Art. 1:100 BW gives the spouses equal shares in the dissolved community unless a prenuptial agreement, or a written agreement made in view of the impending dissolution, provides otherwise. If community assets are insufficient to meet community debts, the shortfall is borne equally, unless reasonableness and fairness require otherwise.

The equal split applies to the community, not to everything the couple owns. Division therefore has an extra step: first establish what is community and what is private, settle the claims under art. 1:87 BW and art. 1:95a BW, then divide the community in half. Pension rights built up during the marriage sit outside the community under art. 1:94 BW and are dealt with under the Wet verevening pensioenrechten bij scheiding. That Act is due to be replaced by the Wet pensioenverdeling bij scheiding, which has a target commencement date of 1 January 2028 and will substitute conversion for the standard equalisation.

Death

Death also dissolves the community, at the moment of death, under art. 1:99 BW. Half belongs to the surviving spouse in their own right and forms no part of the estate. The other half falls into the estate with the deceased’s private property and passes under the will or on intestacy.

Where there is no will and the deceased leaves a spouse and children, the statutory division of art. 4:13 BW applies: the surviving spouse acquires the estate assets and debts, and each child receives a monetary claim against that spouse, in principle not payable until the spouse dies, is declared bankrupt or enters a debt restructuring scheme. Because inheritances, gifts and pre-marital property are now private, the estate is often larger and the surviving spouse’s own half smaller than under the old law. A will drafted on the old assumptions should be reviewed.

How prenuptial agreements interact with the statutory regime

The limited community is only a default. Couples may arrange something else by huwelijkse voorwaarden, before or during the marriage. Art. 1:115 BW requires a notarial deed on penalty of nullity, so a private written agreement has no effect however carefully drafted. Under art. 1:116 BW its provisions can only be invoked against third parties who were unaware of them if the agreement was registered in the public huwelijksgoederenregister, kept at the court registry of the district where the marriage took place, or in The Hague for marriages abroad.

Couples use such an agreement for one of three purposes: to go further than the statutory regime, usually full separation of property with a periodic settlement clause where one spouse runs a business — a clause that, if it is never actually operated during the marriage, brings art. 1:141 BW into play, under which the assets present at the end are presumed to have been formed out of what should have been settled; to return to the old universal community; or to keep the statutory regime but add the machinery it lacks, namely a schedule of pre-marital assets and debts annexed to the deed and an agreed method for calculating the art. 1:95a BW compensation. The third is the most valuable and least used.

What international couples should do differently

Establish which country’s law applies

All of the above is Dutch law, and it only matters if Dutch law governs your regime. Marrying at a Dutch town hall does not by itself make Dutch law applicable, and marrying abroad does not rule it out.

For spouses who married, or designated the applicable law, on or after 29 January 2019, Regulation (EU) 2016/1103 determines the answer in the participating Member States, including the Netherlands. Absent a choice, its Article 26 applies a hierarchy: the spouses’ first common habitual residence after the marriage, failing that their common nationality at the time of the marriage, failing that the state with which they are most closely connected. Two Italians who marry in Rome and move to Eindhoven a month later will usually find that Dutch law governs their property. Article 20 makes the Regulation universal in application, and Article 21 applies one law to all assets wherever located.

For marriages from 1 September 1992 up to and including 28 January 2019 the 1978 Hague Convention on the law applicable to matrimonial property regimes applies in the Netherlands. Its most awkward feature is the automatic change of applicable law, which can leave one marriage split across two regimes in time; the Regulation abandoned that mechanism. Older conflict rules apply to marriages before 1 September 1992: for those marriages the applicable law is determined by the rule laid down in Chelouche/Van Leer (Hoge Raad 10 December 1976), and later changes in the legislation do not of themselves alter the matrimonial property law that governs the marriage.

Make a choice of law, and make it properly

Article 22 of the Regulation allows spouses to choose the law of a state of which either is a national, or the law of the habitual residence of either spouse, at the time of the choice. A change made during the marriage has prospective effect only unless the spouses agree otherwise, and must not adversely affect third-party rights. Article 23 requires the choice to be in writing, dated and signed by both spouses, and adds the formal requirements of the Member State of habitual residence, which in the Netherlands means the notarial deed of art. 1:115 BW. For a couple staying a few years and then moving on, an explicit choice fixes one regime for the whole marriage. Outside the Convention’s automatic-change mechanism, the regime is otherwise sticky: neither a later change in the legislation nor a move to another country displaces the matrimonial property regime that applied at the outset, unless the spouses have expressly made a new choice of law.

Foreign assets and foreign paperwork

Because one law governs assets wherever they are, a flat in Lisbon or a portfolio in Singapore is drawn into the Dutch analysis if Dutch law applies. Several points follow:

• A foreign inheritance or gift is private under art. 1:94 BW, but you need the foreign will, deed or bank record to prove it.
• Foreign regimes do not map onto the Dutch one. A common-law separate-property marriage, a French communauté réduite aux acquêts and a Dutch limited community give different results on the same facts.
• Assets held abroad may be divided under Dutch law but transferred under local property and tax rules.
• Currency movements between the wedding and the dissolution affect reimbursement claims under art. 1:87 BW. Record amounts in the currency paid.