Divorce and property division in the Netherlands: what expats need to know
The Legal Expat Desk (LED) is an information hub by GMW Advocaten, advising the expat community living and working in the Netherlands since 2006. LED regularly publish articles covering a wide spectrum of legal topics.
In this article the LED explains the laws governing community property in Dutch marriages, their consequences for divorce, and how expats should prepare themselves.
Compared to other countries, the Netherlands has unusual rules concerning the financial consequences of marriage. In many nations, marriage does not affect the assets of the spouses.
In such countries possessions are deemed mutual property as of the day the couple is married; excluding premarital assets, gifts and inheritances. In the Netherlands things are different.
Communal property in the Netherlands
Couples who do not go to the notary to make prenuptial agreements prior to their marriage are automatically wed under the so-called "community of property".
That means that through their marriage all assets become community property; not only the possessions they acquire and the liabilities they incur during their marriage, but also all their premarital assets, gifts and inheritances.
The latter can be prevented if the giver or testator stipulates at the time of gift-giving, or in their will, that their gift or inheritance will not fall under any community of property if the beneficiary or heir is married.
If this "exclusion clause" has not been made, and nothing else has been arranged, the divorcing beneficiary or heir will have to share the gift or inheritance with his or her ex-partner.
Considerations for expats
Even if you were married abroad or even if you do not have the Dutch nationality, then it could still be that, without knowing it, you are married in community of property. As the rules governing when this is or is not the case are quite complex, I will save them for the following article.
If you have received a gift or inheritance without the aforementioned exclusion clause, in principle you will have to share it with your ex-partner in case of a divorce. It is very important to keep this in mind.
However, there may be a way out if you can show that your relative, coming from a foreign country with a different system of laws, neglected to write an exclusion clause with their gift or in their will because they were unaware of the concepts of "community property" and "exclusion clauses".
Be advised that this is not definitive, as case law on the subject is inconsistent. Depending on the facts and circumstances of your situation it will be determined whether or not you are obligated to share your gift or inheritance with your ex-partner.
Keeping control of your property
If you want to safeguard your gift or inheritance in case of divorce, it may be wise to ask the intended giver or testator, for example your parents, to invoke an exclusion clause with their future gift or to have the exclusion clause included in their will.This cannot be done after the fact. Gifts or inheritances that have already been received cannot be excluded retroactively.
You should also keep a separate record of the gift or inheritance you received under an exclusion clause from your parents. If you do not do this, and the funds mix with communal money, you may as yet end up having to share your gift or inheritance.