ქონების გაყოფა ჰოლანდიურ განქორწინებაში: რა არის საერთო და როგორ?

In a Dutch divorce, the joint estate (gemeenschap van goederen) is in principle divided in two equal shares under Article 1:100 of the Dutch Civil Code (BW). What falls into that estate depends mainly on when you married: for marriages from 1 January 2018 only what was built up during the marriage is shared, for older marriages in principle everything, unless marital conditions (huwelijkse voorwaarden) say otherwise.

Pension rights are not part of this division. Under Article 1:94(2) BW they are excluded from the community and divided under a separate statute, the Pension Rights Equalisation on Divorce Act (Wet verevening pensioenrechten bij scheiding, WVPS). This article explains which regime applies to you, how the division is calculated, how marital conditions and cross-border rules change the picture, and what to check before you sign a settlement.

Which property regime applies to your marriage?

That depends on your wedding date and on whether you signed marital conditions. Without marital conditions, you are married in some form of community of property.

For marriages concluded on or after 1 January 2018, the default is the limited community of property (beperkte gemeenschap van goederen). Under Article 1:94(2) BW, it covers what the spouses owned jointly before the marriage and what either of them acquired during it. Property one spouse owned alone before the marriage stays private, and so do inheritances and gifts.

For marriages concluded before 1 January 2018, the default is the general community of property (algehele gemeenschap van goederen). In principle everything then falls into the joint estate, including property from before the marriage, inheritances and gifts. The exception is an inheritance or gift with an exclusion clause (uitsluitingsclausule) in the will or deed of gift.

Debts follow the same rules. Debts that fall into the community are shared. Under Article 1:100(2) BW, if the joint assets are not enough to pay the joint debts, each spouse bears half of the shortfall, unless reasonableness and fairness require a different split.

Which date counts for the division?

The community ends on the day the divorce petition is filed with the court. That rule is in Article 1:99(1)(b) BW.

What either spouse acquires after that date, such as salary or a new car, no longer falls into the joint estate. The filing date fixes the composition of the community. For the value of assets, the time of the actual division usually counts, unless you agree on another valuation date. With a house or shares, that difference can amount to tens of thousands of euros, so agree on the valuation date explicitly.

How is the division calculated?

You first establish what belongs to the community and what it is worth, and then divide the net value equally. Who earned more, contributed more or will care for the children does not change that split.

In practice, the division follows these steps:

1. List all assets and debts and determine which belong to the community and which are private.
2. Value each item, for example the home through an appraisal and a business through a valuation report.
3. Check for reimbursement claims (vergoedingsrechten). Under Article 1:95(2) BW, a spouse who paid towards a joint asset from private money, such as an inheritance, has a claim against the community.
4. Allocate the assets. One spouse can keep an asset, such as the house, and pay the other half of its net value.

Spousal and child maintenance (alimentatie) are separate questions. The district court decides on them in the same divorce proceedings, but they are not settled through the property division.

რა არის საერთო და რა რჩება შენსას?

Under the limited community of a marriage from 2018 onwards, what you acquire during the marriage is shared, and what you owned alone before the marriage, inherited or received as a gift stays yours. Under the general community of an older marriage, almost everything is shared.

For a marriage in limited community, the joint estate typically includes:

• savings built up from income earned during the marriage;
• investments and real estate bought during the marriage;
• a business started during the marriage, or shares acquired during it;
• debts incurred during the marriage.

Mixed cases are common. If a home is bought during the marriage partly with inherited money, the spouse who contributed the inheritance has a reimbursement claim under Article 1:95(2) BW. Under Article 1:95(1) BW, an asset paid for more than half from one spouse’s private money stays outside the community altogether. Bank statements and notarial deeds showing where the money came from are often decisive. Our article on განქორწინება და ოჯახური ცხოვრება explains how this works for the house in particular.

How do marital conditions change the division?

Marital conditions replace the statutory regime with your own arrangements. Under Article 1:115 BW they are only valid if made by notarial deed, before or during the marriage.

Common choices are:

• a cold exclusion (koude uitsluiting): no community and no settlement of income;
• a periodic settlement clause (periodiek verrekenbeding): income saved during the marriage is settled every year;
• a final settlement clause (finaal verrekenbeding): at the end of the marriage you settle as if you had been married in community;
• specific protection for a business, for example by keeping the shares or business profits outside any settlement.

Marital conditions only protect you if you perform them. Under Article 1:141(3) BW, if a periodic settlement clause was never performed, all assets present at the end of the marriage are presumed to come from income that should have been settled. The spouse who claims otherwise must prove it. For a settlement clause, Article 1:142 BW also makes the date of filing the divorce petition the reference point.

Which law applies if you are an international couple?

For expats, the first question is not how to divide, but which country’s law governs your property. The Dutch rules above only apply if Dutch law governs your matrimonial property regime.

For marriages concluded on or after 29 January 2019, the EU Matrimonial Property Regulation, Regulation (EU) 2016/1103, decides this; Book 10 of the Dutch Civil Code refers to it. You can choose the law of a country where one of you has their habitual residence or of which one of you is a national. Without a choice, the law of your first common habitual residence after the wedding usually applies, then the law of your common nationality, then the law of the country with which you are most closely connected. For older marriages, earlier conflict rules apply, so your wedding date matters here too.

Property abroad needs separate attention. A house in another country may have to be transferred under that country’s rules, and a Dutch settlement does not automatically change a foreign land register. Questions about the tax treatment of cross-border transfers are outside our practice; we refer that part to a tax specialist.

Can you deviate from an equal split?

Yes, by agreement. Article 1:100(1) BW allows spouses to agree in writing, with a view to the divorce, on a different division.

A court departs from equal shares only in very exceptional circumstances, where an equal split would be unacceptable under the standards of reasonableness and fairness. Many online sources describe an “equitable distribution” in which the court weighs contributions, earning capacity and needs. That concept comes from other legal systems, such as those of the United States. Under Dutch law, differences in income or care for the children are dealt with through maintenance, not through the property division.

რა ხდება საპენსიო უფლებებთან დაკავშირებით?

Pension accrued during the marriage is divided under the WVPS, separately from the rest of the property. By default, Article 2 WVPS gives each spouse a right to equalisation (verevening): half of the retirement pension the other built up between the wedding and the divorce, under Article 3 WVPS.

Either spouse must notify the pension provider within two years after the divorce, using the official form, under Article 2(2) WVPS. Then the provider pays your share directly to you. If you miss that deadline, your right to half remains, but you must collect the payments from your ex-spouse yourself. You can also agree on a different split, exclude equalisation in marital conditions or a written agreement, or agree on conversion (conversie), which gives each spouse a separate pension of their own. Divorces from before the WVPS took effect follow different rules.

A bill to replace the WVPS (Wet pensioenverdeling bij scheiding 2022) has been pending for years and is not in force. Until it is, the WVPS applies to every divorce.

How do you reach an agreement on the division?

Most couples settle the division themselves and lay it down in a divorce settlement (echtscheidingsconvenant). In a joint divorce petition, that settlement is submitted to the district court together with the petition.

Agreeing yourselves is usually faster and cheaper than a court decision on every asset, and it leaves room for practical solutions, such as one spouse keeping the house and the other the savings. Mediation can help if you can still talk to each other. If you cannot agree, each spouse has their own lawyer and the court decides the points in dispute, usually in the divorce proceedings themselves.

What should you check as the spouse who keeps the home or business?

Taking over an asset means paying out your ex-spouse and taking on the debts that come with it. Check the following before you sign:

• whether the mortgage lender will release your ex-spouse from joint and several liability for the mortgage;
• whether the appraisal or business valuation is recent and based on an agreed valuation date;
• whether you have a reimbursement claim for private money you put into the asset (Article 1:95(2) BW);
• whether the settlement states who bears the costs of the notarial transfer;
• for a business: whether your marital conditions contain a settlement clause covering business profits.

What should you check as the spouse who is bought out?

Your position depends on full disclosure by the other spouse. Check the following before you sign:

• whether you have received statements of all bank accounts, investments and debts on the filing date;
• whether the valuation of the home or business is independent and up to date;
• whether you will be released from the mortgage and other joint debts;
• whether the pension provider has been notified within the two-year deadline under the WVPS;
• whether assets abroad are also transferred or registered in line with the settlement.

What can we do for you with property division on divorce?

ჩვენი ოჯახის იურისტები assist spouses and international couples with the division of property and pension in a Dutch divorce.

• We determine which matrimonial property regime and which country’s law apply to your marriage.
• We draw up an overview of all joint and private assets and debts on the filing date, including reimbursement claims.
• We review your marital conditions and check whether a settlement clause was performed.
• We draft or review the divorce settlement, including the arrangements for the home, the business and pension equalisation.
• We conduct the proceedings before the district court if you and your spouse cannot agree.

შემაჯამებელი

• Married on or after 1 January 2018: limited community of property; property from before the marriage, gifts and inheritances stay yours. Married before: general community, in which almost everything is shared.
• The community ends on the date the divorce petition is filed (Article 1:99 BW) and is divided in equal shares (Article 1:100 BW), unless you agree otherwise.
• Marital conditions replace the default, but an unperformed periodic settlement clause can still lead to sharing (Article 1:141(3) BW).
• Pension is divided under the WVPS; notify the pension provider within two years after the divorce.
• International couples should first establish which law governs their property; for marriages from 29 January 2019 the EU Regulation 2016/1103 decides.

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