In The Netherlands, prenuptial and postnuptial agreements are exclusively drawn up by a notary public. In Dutch, the correct term is notaris. Surprisingly to most foreigners, a notaris is not a lawyer or solicitor. Notaries form a separate profession with its own rules and regulations. This means that hiring a lawyer is not usually necessary. This article explains more about the process and when you may or may not need separate legal advice.
The notary provides a public function
All notaries In The Netherlands are appointed by the King as a public functionary. Notaries are not only exclusively permitted to register prenups, but also to transfer real estate and draw up wills. The notary is a neutral party to these transactions and must by law ascertain that both parties enter into each transaction fully and willingly. The notary has a duty of care to inform parties of their rights. Furthermore, the notary will refuse their services if the agreement is deemed contrary to law or decency.
Only a notary can legally conclude a prenuptial or postnuptial agreement. Other forms of agreement regarding marital property are not valid in The Netherlands. The exception to this is a pre- or postnup legally drawn up in a foreign jurisdiction. These agreements are generally accepted in The Netherlands, provided they would be valid in the home jurisdiction.
For more information on the content of prenuptial and postnuptial agreements in The Netherlands, please see here.
Prenuptial agreements are binding in The Netherlands
The role of the notary as a state appointed body means that a high level of confidence is attached to any official document drawn up by a notary. Therefore, it is very rare for a prenup to be overturned in court at a later date in The Netherlands. The principle is that parties are bound by a prenup in all except extreme cases. One such case may be if one of the spouses was duped into signing a prenup by false statements made by the other spouse.
But prenuptial agreements are not always binding in other countries
However, if you are a couple from other parts of the world, a prenup is not necessarily binding when you return to your home country or move on from The Netherlands. Particularly in the UK and USA, family courts require that parties each have received individual independent legal advice before concluding a prenup. The role of the notary as a neutral party is often misunderstood or ignored. Therefore, you may need to conclude a second agreement in line with the law of the country you move to later on.
If you have property abroad or are in line for an inheritance, then you also need to check whether a Dutch prenup will be valid there.
When do you need a lawyer?
In most cases you do not need to consult with a lawyer at all when concluding a prenup. The notary will deal with any questions you may have.
In practice, however, couples can find the content of a prenup, even when translated, quite complicated. Notaries are not always used to dealing with foreign clients. This is the point where consulting a lawyer for a second opinion can add value. If you feel you do not understand the implications of the prenup, then do not be afraid to ask the notary for clarification. If you are still unsure, you can consult a lawyer separately.
Some couples consult with their own individual lawyers before concluding a prenup to prove that they have received independent legal advice at the time the agreement was concluded. The prenup will then state that both parties have been informed of their rights by independent advisors. This may make the agreement more easily enforceable abroad.
In the case of a postnuptial agreement, it is essential to ascertain what the previous marital regime was to assess the consequences of the postnup for the marital property. Applying Dutch law or changing the regime may have unforeseen consequences.
Dutch Divorce lawyer regularly provides consultancy services for reviewing draft pre- and postnuptial agreements. We also provide (video) meetings to explain Dutch law and the implications of a pre- or postnup. We both advise couples jointly and individually depending on your needs.
Please feel free to contact us for more information.