Antoine de Werd is partner at GMW Advocaten in the Hague and acts as head of the family law section....
Pre-marital mediation10 February 2014, by Antoine de Werd
Mediation when making a pre-nuptial agreement isn’t as crazy as it sounds. Lots of people get married without making proper arrangements.
Future spouses are more concerned with starting their new relationship than considering what would happen if it ended. When you get married, you focus all your attention on the wedding, and that’s great.
Making prior arrangements in case you end up separating is often viewed as a negative thing but, all too often, this attitude proves unwise.
With one in three marriages ending in divorce, and half of all international marriages, you have to be realistic.
The majority of future spouses (approximately 74 per cent in 2009) marry into community of property. When they say yes to the registrar, all kinds of legal provisions automatically take effect that, in all likelihood, are not their conscious intention.
All too often, it turns out that little, if any, consideration is given to the implications under property law of marrying into community of goods. People who do not marry into community of goods have had a pre-nuptial agreement drawn up prior to their marriage.
On the face of it, such couples are better prepared - but is that really the case?
Ordinarily, the notary will inform future spouses about the pre-nuptial agreement, usually at a single meeting. After this, the (draft) pre-nuptial agreement is drawn up, which is usually a model agreement rather than one customised to the couple concerned, and that agreement is then formalised.
The couple then go ahead and get married. If they get divorced, it all too often turns out in practice that the pre-nuptial agreement is not worth the paper on which it is written. Or, to put it another way, it entails consequences that one of the spouses did not intend.
Alongside children and maintenance payments, the implications of pre-nuptial agreements can often result in lengthy divorce proceedings, because they are not of sufficient quality to reflect the intentions or wishes of both spouses.
But this fact only comes to light at the time of the divorce - and by then, it’s too late.
Pre-marital mediation: purpose & benefit
It would be far preferable for future spouses wishing to embark upon a long-term relationship to take due care over the process of concluding a pre-nuptial agreement, which means also giving proper consideration to the end of that relationship.
The couple must be able to discuss their views, expectations and interests openly, clearly and in confidence. The help of an expert third party, with the right skills and legal and tax knowledge, is pretty much indispensable.
The third party must talk to the future spouses about their preferred marital model (such as a conventional breadwinner marriage or equal sharing of income and tasks), make them more aware of how to communicate with each other and, particularly important, ensure that they understand property law and financial aspects during their marriage and in the event of a divorce.
Gifts and inheritances before or during the marriage will also need to be discussed, to avoid potential problems during the marriage and in the event of divorce.
A mediator, i.e. a neutral expert, has an important role to play in establishing well thought-out pre-nuptial agreements. Mediation is already well established: mediators guide communication and negotiations between parties in order to achieve the best possible outcome, based on their mutual interests.
Preventive mediation, however, is still relatively new to the Netherlands, and is the practice of mediating before a problem actually arises.
Notary or mediation lawyer?
Mediation lawyers, who are also more broadly called family mediators, normally possess a lot of knowledge and experience and are highly skilled. They know when and why things sometimes go wrong and how to prevent it.
Most mediation lawyers have experience of legal proceedings and divorce mediation, unlike notaries, who are needed only in order to legally execute the pre-nuptial agreement. To establish an appropriate and well thought-out pre-nuptial agreement, the mediation lawyer (family mediator) works with a notary.
Note: Currently there are some political parties in the Dutch parliament which have the intention to change the law concerning marriage. This intended change implies that in the future, when couples marry in the Netherlands, they will be married partially under community of property.