Property in marriage and its division on divorce

On a Dutch divorce, your property is divided according to the matrimonial property regime that applied during your marriage. If you married on or after 1 January 2018, the default is a limited community of property (beperkte gemeenschap van goederen): what each of you owned before the marriage, and gifts and inheritances, stay personal, while what you build up during the marriage is shared. If you married before that date, the default was a general community of property (algemene gemeenschap van goederen), in which virtually everything was shared, regardless of when or how it was acquired.

Either default can be set aside by prenuptial conditions (huwelijkse voorwaarden). Many couples use them, most often to keep a business out of the shared estate. Our article on prenuptial agreements explains how that works.

Which regime applies to your marriage?

The date of your marriage and any prenuptial agreement decide this. Without prenuptial conditions, a marriage concluded from 1 January 2018 falls under the limited community; an older marriage stays under the general community.

Under the limited community, the law excludes gifts and inheritances from the community, as well as property each spouse already owned alone before the wedding (article 1:94 of the Dutch Civil Code, BW). Under the old general community, a gift or inheritance only stayed outside the community if the donor or testator had included an exclusion clause. Our article on Dutch marriage law covers the position during the marriage in more detail.

How is the community divided on divorce?

The community is dissolved and divided in equal shares. In principle each of you is entitled to half its value (article 1:100 BW).

Debts within the community are shared as well. That regularly comes as a surprise to the spouse who did not incur them. The composition of the community is fixed at the moment the divorce petition is filed with the court (article 1:99 BW). Assets and debts that arise after that date in principle no longer fall into the community.

In almost every case, three practical questions come up:

• What belongs to the community, and what is personal?
• What is everything worth, and at what date is it valued?
• How is the division actually carried out: who takes the house, who takes which pension rights, and how is any difference settled in money?

Who has to prove that an asset is personal?

The spouse who claims an asset is personal must prove it. If that cannot be shown, the asset is treated as belonging to the community (article 1:94 BW).

That rule decides many disputes on its own. Useful evidence includes purchase documents, bank statements that trace the funds, a deed of gift, or a will that contains an exclusion clause.

This is why keeping documentation matters, even in a happy marriage. It is also why an inheritance received during the marriage should be kept traceable, for example in a separate account, rather than merged into a joint account.

What is a reimbursement claim?

A reimbursement claim (vergoedingsrecht) arises when personal money is used for a shared asset, or shared money for a personal one. The claim exists between the spouses and is settled on division.

Since the 2012 reform, article 1:87 BW provides that such a claim in principle shares in the increase or decrease in value of the asset the money was spent on. It is then not a fixed nominal sum. For consumable goods, the claim is always the nominal amount. Spouses can agree otherwise.

A contribution to your partner’s house made years ago can therefore be worth considerably more, or less, than the amount you originally paid.

What happens to the family home?

The family home is the most common sticking point, because the outcome depends on a third party. The lender must be willing to release one spouse from the mortgage.

If the lender refuses, neither an agreement between you nor a court decision can force it. In practice the answer is then often a sale of the house.

How are pension rights divided?

Retirement pension built up during the marriage is in principle dealt with under the Pension Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding) of 1994, not as part of the division of the community. You can agree otherwise, for example in prenuptial conditions or a divorce settlement.

To receive your share directly from the pension administrator, you notify it within two years after the divorce, using the prescribed form. Missing that period does not end your right. It does mean that you have to collect your share from your former spouse yourself.

In summary

• Married on or after 1 January 2018 without prenuptial conditions: limited community of property. Married earlier: general community of property.
• On divorce the community is divided in equal shares, debts included; its composition is fixed when the divorce petition is filed.
• If you cannot prove that an asset is personal, it counts as community property.
• Reimbursement claims between spouses in principle follow the change in value of the asset concerned.
• The house depends on the lender’s cooperation; pension rights follow the equalisation rules and require notice to the administrator within two years.

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