What happens to property on a Dutch divorce is decided by the regime that applied during the marriage. For marriages concluded from 1 January 2018 the default is a limited community of property: what each spouse owned before the marriage stays personal, gifts and inheritances stay personal, and what is built up during the marriage is shared. For marriages before that date, the default was a general community of property, in which virtually everything was shared regardless of when or how it was acquired.
Either default can be displaced by prenuptial conditions, and many couples do so, most often to keep a business out of the shared estate.
Dividing the community
On divorce the community is dissolved and divided in equal shares. In principle both spouses are entitled to half its value, and debts within the community are shared as well – which regularly comes as a surprise to the spouse who did not incur them.
Three practical questions arise in almost every case. What belongs to the community and what is personal. What everything is worth, and at what date it is valued. And how the division is actually effected: who takes the house, who takes the pension rights, and how any difference is settled in money.
The evidence problem
Where it cannot be established that an asset is personal, it is treated as belonging to the community. That rule decides many disputes on its own, and it means that the spouse claiming an asset is personal carries the burden of showing it: purchase documents, bank statements tracing the funds, a deed of gift or a will containing an exclusion clause.
This is why keeping documentation matters even in a happy marriage, and why an inheritance received during a marriage should be traceable rather than merged into a joint account.
Reimbursement claims
Where personal money is used for a shared asset, or shared money for a personal one, a reimbursement claim arises between the spouses. Since the reform of the rules, such a claim will in principle share in the increase or decrease in value of the asset it was spent on rather than being a fixed nominal sum. A contribution to a partner’s house made years ago can therefore be worth considerably more, or less, than the amount originally paid.
The house and the pension
The family home is the most common sticking point, because the outcome depends on a third party: the lender must be prepared to release one spouse from the mortgage. Where it is not, neither an agreement nor a court decision can force it, and the practical answer is often sale.
Pension rights built up during the marriage are dealt with under the pension equalisation rules rather than as part of the division, unless the parties agree otherwise. Notifying the pension administrator within the prescribed period after the divorce is what secures direct payment; missing it does not extinguish the right but makes collecting it dependent on the former spouse.
Related reading
Our articles on Dutch marriage law and on prenuptial agreements deal with the position during the marriage and with how to depart from the default regime.
Advice
Most disputes about division are really disputes about evidence and valuation, and both can be prepared for. Our family lawyers advise on the regime that applies, on reimbursement claims, and on the division itself. Please contact Law & More.
