Atlas

Netherlands

The Netherlands family and succession laws recognise two forms of couples' relationship:

  • MARRIAGE between two persons of opposite or same sex,

  • REGISTERED PARTNERSHIP between two persons of opposite or same sex.

Both categories are regulated by the Civil Code.

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DISCRIMINATORY RULES

Whereas most important rules for marriage nad registered partnerships are the same, no enforceable rights and obligations under family and succession law are attached to de facto cohabitation.

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Links to applicable regulations

  • MARRIAGE, REGISTERED PARTNERSHIP, SUCCESSION and PRIVATE INTERNATIONAL LAW: Civil Code

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MARRIAGE 

  • The standard matrimonial property regime is community of property. The law changed significantly on 1 January 2018. For couples who were already married before 1 January 2018, the old legislation remains in force. As a result, the community of property has two forms.

For spouses married before 1 January 2018: all assets that the spouses put into the marriage and all assets that they subsequently acquire, with some specific exceptions, form part of the marital community. Also assets obtained as a gift or on the basis of the law of succession form part of the marital community. The most important exception are assets with regard to which the testator or the donor has determined by means of an exclusion clause that they will remain outside the marital community of property. These assets that remain outside the marital community are designated as 'own equity'. The benefits (fruits) of own equity and anything which replaces it are also part of own equity (and therefore fall outside the marital community). Another category that falls outside the community are assets and liabilities which are in a particular way attached to one of the spouses personally. This is, however, a very limited category as personal attachment is rarely recognised other than under certain specific circumstances such as benefits claimed for personal injury. There is a separate regime for (certain) pension rights as set out in the Act on Equalisation of Pensions on Divorce. All debts of the spouses, whether incurred prior to or during the course of the marriage, fall into the marital community and are therefore community debts, except those which relate to assets excluded from the community, which belong to the spouse's own equity. Attached liabilities are also own liabilities, but such debts are very rare.

For spouses married after 1 January 2018: all assets that the spouses receive during the marriage belong to the marital community, with the exception of those received as a gift or under the law of succession (unless otherwise indicated by the donor/testator) or assets that replace assets forming part of the spouse's own equity. Assets that are brought to the marriage no longer form part of the community of property, with the exception of assets that the spouses were already jointly entitled to before the marriage. All debts of spouses arising during the marriage are, as a general rule, part of the marital community with the exception of those relating to assets excluded from the community. Pre-marital debts are no longer part of the community unless they relate to goods that were already joint property prior to the marriage.

In case of division of property, each spouse is entitled to half of the dissolved marital community. Nuptial agreements can deviate from this equal share, although this is not often seen in practice. The partners themselves settle the distribution between them on the dissolution of the marital community. A notary or lawyer can help them with this, although such an intervention is not a requirement. If the partners cannot agree on the division of property they may turn to the courts. As an aside, it is worth noting that the dissolution of a marriage as such (disregarding the division of property) does require the intervention of a lawyer and a judge. This also applies to the dissolution of a registered partnership, although if this is by mutual consent and no minor children are involved, this can take place without the intervention of a judge. In the latter case, however, a lawyer or notary must be involved in the procedure.

In addition, it is possible to draw up a nuptial agreement which creates a marital property community. Nuptial agreements may be entered into at any time during a marriage or prior to marriage. This community can be both more extensive or more limited than the standard legal community of property. Contractual freedom is paramount. In practice a large number of nuptial agreements are also entered into where no community of property arises, but which establish obligations regarding income and capital to be shared between the spouses (marital equalisation obligations). Such an equalisation of obligations is only of effect between the spouses and takes place periodically (for example, once a year) or definitively (in the case of divorce and/or death). Specific equalisation provisions need to be set out in the nuptial agreement as the law only establishes a few general provisions. Some nuptial agreements rule out any settlement or division of property on divorce. Such agreements are referred to as a ‘cold exclusion’. The right to pension equalisation can also be excluded. The only claim that still exists is the right to maintenance, which cannot be excluded before the marriage. Nuptial agreements may not be in conflict with public order and good morals and must be concluded as notarial deed. If nuptial agreement is entered into during marriage, then any pre-existing marital community of property is dissolved and can be divided.

  • Dutch law knows two types of succession: intestate (no will) and testate (valid will).

In case of intestate succession, the spouse (or registered partner) inherits with the children of the deceased if they exist. The main rule is that the heirs inherit in equal parts. However, the spouse (or registered partner) legally obtains the property of the estate. Each of the children, as heirs, legally obtain a monetary claim at the expense of the spouse, corresponding to the value of his inheritance. This claim is only due and payable: (a) if the spouse has been declared bankrupt or the debt rescheduling scheme for natural persons has been declared applicable to him/her; or (b) when the spouse has died. The surviving spouse has full control over the property of the estate and can also dispose of it. He or she can therefore continue to live undisturbed after the death of their spouse/partner. Only if the surviving spouse/registered partner remarries do the children acquire some legal control over the estate. But even then the position of the survivor is protected.

 

REGISTERED PARTNERSHIP

  • The most important rules regarding marriage apply mutatis mutandis. to registered partnerships.

The rights and obligations of registered partners differ so little from those of spouses that it is even possible to convert a partnership into a marriage without affecting the marital property regime/partnership property regime or the rights and obligations of the spouses/registered partners. Because of the very close similarity of marriage and registered partnership, there have been several calls for the abolition of registered partnerships.


DE FACTO COHABITATION

  • In family and succession law, legal consequences are only attached to marriage and registered partnership, therefore, in principle, no enforceable rights and obligations are attached to de facto cohabitation.

There are no maintenance obligations, persons cohabiting are not each other’s heirs in the event of intestacy etc. Nonetheless, a person who had a permanent joint household with the deceased at the time of his/her death has the right to continue living in the testator’s home for 6 months after the death of the testator. An informal cohabitation can also have consequences in social security law, tenancy law and pension law. The courts use general property law to give substance to relationship that exists between the partners, applying the doctrine of “tacit agreement”, “reasonable fairness”, the “natural unenforceable agreement” or “unjust enrichment”. In practice, unmarried cohabitants regularly choose to enter into a notarised cohabitation agreement setting out what they have agreed between them regarding mutual rights and obligations. Contractual freedom applies. Topics which are generally covered in such cohabitation agreements are how household expenses are to be shared, the ownership of the household effects, rules of proof with regard to goods, joint bank accounts, agreements with regard to the house (including in case of death), designation as partner if there is any survivor's pension, arrangements for what will happen if the cohabitation ends. Alimony obligations may also be agreed on, but this is more the exception than the rule. In practice, a notarial cohabitation agreement is often (but not exclusively) entered into when a couple purchases a property or decides to have children. Couples often draw up wills at the same time in order to deal with matters of inheritance and ensure that the cohabitant has priority over parents, brothers and sisters and children.

Based on national report provided by Freek Schols & Theo Reijnen