This article discusses how foreign marriage agreements are viewed when getting a divorce in The Netherlands as well as what effects Dutch prenuptial or postnuptial agreements have.
Foreign marriage agreement/ prenup
When you got married you had a prenuptial agreement (prenup) drawn up in another country. This prenup can be registered in the foreign marital property register in The Hague when you arrive in The Netherlands. This provides you with protection from creditors if they try and recoup your spouses’ debts via your property.
In the main, the Dutch courts respect prenuptial agreements concluded in other countries, as long as the provisions are do not contravene basic rights or Dutch legal principles. For example, it is questionable whether an infidelity clause forfeiting all marital property would survive in the Dutch courts. However, a prenup stating that there shall be no marital property whatsoever is usually accepted.
When considering a divorce, it is important to have your prenup to hand, so you can get advice tailor made to your situation. In our experience no two agreements are the same.
Dutch prenuptial agreement
If you are getting married in The Netherlands, you may want to conclude a prenup. Only civil law notaries (‘notaris’) are qualified to register prenuptial and postnuptial agreements in The Netherlands. Lawyers (‘advocaten’) are not qualified to do so, but we often advise clients on the drafting of marital agreements.
Particularly if you have a business or foreign capital, trust funds or inheritances, we would advise concluding a prenuptial agreement. Even with the new limited community of property as of the 1st of January 2018, it is often still in your interest to conclude a prenup. Without a prenup there may be no proof what personal property was brought into the marriage. A prenup can also negate any claim that may be laid to compensation for business earnings.
Types of prenuptial agreements
The most common form of prenuptial agreement in The Netherlands involves creating only a partial community of property for certain goods, such as the marital home and its contents. Upon divorce conflicts may arise if private property has been jointly financed or more property than envisaged in the prenuptial agreement is jointly owned.
Some prenuptial agreements exclude all community of property. This form of prenup is becoming more and more common.
If all communal property has been excluded, the prenup may contain certain set off clauses mitigating the effects of exclusion for the spouse with the lesser income or property. The agreement may contain either an annual set-off clause, requiring the spouses to compensate each other at the end of each year, or there may be a final set-off clause requiring the spouses to compensate each other upon divorce. Sometimes final compensation is owed equivalent to the amount if there had been community of property! Compensation is not compulsory, but it was common practice for many years for notaries to advise adding compensation clauses.
In most cases couples never settle the annual compensation clause during the marriage. This can have serious consequences at the end of the marriage, as the courts assume as a rule of thumb that if parties did not settle annually, that each spouse is entitled to compensation for half of the value of the property at the end of the marriage. This can be a heavy penalty. Say one spouse owns 90 % of the assets accrued during the marriage, he or she will have to compensate up to 50 % of the value to the other spouse.
Keeping your prenup up to date
It is important to think carefully about the consequences of your prenup and consider updating it if circumstances change. Many couples forget about their prenup until a divorce is immanent and the contents may not be tailored to the current situation.
Excluding future maintenance
In The Netherlands it is still forbidden to make arrangements regarding future maintenance for either spouse or children in a prenuptial agreement. It is possible that future legislation will alter this situation. However, currently any such clause is non-enforceable.
For foreign postnuptial agreements, the same rules apply as for foreign prenuptial agreements (see above).
It is also possible to conclude a postnuptial agreement in The Netherlands, but be careful that this does not implicitly mean that you change the law applicable to your marital regime. Unless, of course, that is what you want.
Concluding a postnuptial agreement does not completely heal over a previous community of property. Postnuptial agreements may not be detrimental to creditors rights In such case a creditor may have the agreement rescinded.
Not all foreign couples living in The Netherlands fully understand the implications of marrying under Dutch law. You may want to change your marital regime after you are already married. Under certain circumstances, you can conclude a postnuptial agreement nullifying the community of property, without having to pay gift tax, as long as you revert to the original property share as of the time of marriage. However, there is a limited timeframe after marriage that you can make use of this tax ruling.
Even still, creditors may protest as concluding a post nuptial agreement may be detrimental to their rights.
If you have any questions, please contact us.