In a divorce involving your own business, three questions must be answered separately: which property rights are included in the settlement, what those rights are worth and what income may be available for maintenance? Your ex-partner is not automatically entitled to half of the business. Conversely, the fact that the business is registered in your name or that there is a prenuptial agreement does not automatically mean that there is nothing to divide or settle.
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Written by Öznur Batur, attorney at Arslan Advocaten, practising in personal and family law. Registered in the specialisation register of the Netherlands Bar for personal and family law and criminal law. Last updated: 19 September 2026. General information is not legal advice about your own situation.
A good settlement protects both the claims of both partners and the feasibility of the arrangements. A high value on paper, for example, does not mean that there is enough money available to pay a buy-out sum immediately. In this article you can read which documents and decisions are needed where there is a business, shares in a private limited company (bv) or an interest in a partnership.
Start with the marriage and the legal form of the business
The first question is which form of relationship and which matrimonial property regime apply. Are you married, in a registered partnership or cohabiting? When was the relationship entered into? Is there a prenuptial or registered partnership agreement, and is there a connection with another country? Those answers come before the valuation of the business.
Then look at the legal form of the business. In a sole proprietorship, business assets and debts are treated differently in the settlement from those of a bv. In a bv, the shareholder holds shares; the company itself owns its own assets and is, in principle, itself the party to its obligations. In a general partnership (vof) or professional partnership (maatschap), the partner’s share and the arrangements with the other partners are important.
The accounts must make that structure visible. An extract from the Netherlands Chamber of Commerce (KVK) register is useful, but it does not tell you which property rights exist between the spouses. Therefore also gather deeds of incorporation, shareholder information, partnership agreements and the notarial prenuptial agreement.
Does the business fall within the community of property?
For Dutch marriages without a prenuptial agreement, the date of the marriage is relevant. The current statutory regime provides for a limited community of property. A business that was already private property before the marriage may therefore remain outside the community. For older marriages, the broader former regime may apply. Existing joint ownership, gifts and inheritances require additional assessment.
That does not resolve every claim. A business may be private property while money from other assets has been invested in it. Compensation for work and expertise for the benefit of the community may also be relevant. Article 1:95a of the Dutch Civil Code (BW) contains a rule for this where a business falls outside the community and reasonable compensation has not already benefited both spouses in some other way.
A proper analysis therefore distinguishes between ownership, community, settlement and compensation. The conclusion that the partner is entitled to half, or to nothing at all, can only be drawn after these elements have been examined.
What does a prenuptial agreement mean?
A prenuptial agreement may provide that assets remain outside a community. It may also contain a periodic or final settlement clause. An agreement to settle income annually deserves particular attention if this was never done during the marriage.
Article 1:141 of the Dutch Civil Code governs, among other things, the consequences of a periodic settlement obligation that has not been performed. The assets present at the end of the marriage may be covered by the statutory presumption of proof. This does not mean that every business is shared in full without further analysis, but it does mean that good records and an explanation of where the assets came from are important.
With business profits, it also matters what the agreement specifically treats as income and whether the business owner can, to a predominant extent, determine that profits benefit him directly or indirectly. Not every profit that remains in a bv is therefore automatically irrelevant. On this point, also read the explanation of prenuptial agreements and settlement clauses.
Private money in the business and business money in the home
During a relationship, flows of money regularly become intertwined. A partner pays for an investment out of an inheritance. The business lends money to a partner. Or profits are used to pay off the mortgage on a privately owned home. Each payment may have a different legal basis and therefore different consequences.
For each relevant payment, set out who paid, from which assets, on what date, for what purpose and on the basis of which arrangement. Article 1:87 of the Dutch Civil Code may be relevant to transfers of value between spouses. Whether nominal or some other form of compensation applies depends on, among other things, the applicable law, the date and any deviating arrangements.
A bank statement proves a payment, but not automatically whether it was a loan, an investment or a gift. Also look for the correspondence and how it was recorded in the accounts. Avoid the same item later being included both in a business valuation and in a separate claim without this being accounted for.
How is a business valued?
For a usable valuation, it must first be clear what is being valued and as at what date. Does it concern shares, the interest in a vof or the assets and liabilities of a sole proprietorship? Which reference date applies? Do the parties agree on the underlying assumptions? A valuation expert needs a clearly defined assignment.
The book value shown in the annual accounts is not by definition the value for the division. Possible factors include earning capacity, debts, dependence on the business owner, customer concentration, contracts, tax positions and risks. For a business that depends entirely on the personal efforts of one professional, transferable goodwill may be assessed differently from that of an organisation that functions independently.
An expert must explain the assumptions. What turnover is expected, which costs are structural and which investments are necessary? Also show how sensitive assumptions affect the value. An exact figure without insight into the calculation is an insufficient basis for a major financial arrangement.
Which documents are needed?
Annual accounts or tax returns for several years, recent interim figures and an overview of business debts are usually useful. In addition, there are bank balances, receivables, work in progress, relevant contracts and any forecasts. In the case of a bv, the director’s salary, dividend resolutions, current account relationships and the group structure are also relevant.
The legal documents include the prenuptial agreement, ownership details and earlier arrangements. If a partner has worked in the business, record on what basis: as an employee, partner, shareholder or without a separate agreement. Alongside family law, these positions may involve their own rights and obligations.
Agree how documents will be shared securely and which experts may use them. Commercial confidentiality requires care, but it is not a general reason to withhold information relevant to a financial settlement. Your lawyer can assess how a specific dispute about information should be resolved.
Maintenance where profits fluctuate
The value of the business and the income available for maintenance are separate questions. A business owner with a valuable business may have few liquid assets. Conversely, a low salary from a bv does not always mean that there is hardly any ability to pay. Look at the income that can reasonably be available and at the continuity of the business.
An average of past annual figures may be a starting point, but it is not an automatic outcome. Changes in turnover, costs, the market and health must be substantiated. A forecast is stronger if it is consistent with specific contracts, the order book and current figures. A structural improvement may also be a reason to reassess an earlier amount.
A business owner cannot stop paying maintenance on their own initiative without consequences because turnover is disappointing. Record the change and have it assessed whether consultation or proceedings to vary the maintenance are needed. Read the explanation of spousal maintenance and calculating and varying child maintenance.
Avoid unexplained double counting
A business valuation and a maintenance calculation may partly rely on the same expectations about future income. That does not mean that one of the two calculations automatically falls away. The connection between them must, however, be made understandable, particularly if the business owner has to finance a buy-out sum and also pays maintenance.
Have the advisers state explicitly which cash flows are included in the valuation, which income is used for maintenance and which financing costs have been taken into account. Tax effects must also be treated consistently. Combining a high buy-out sum with a calculation that keeps the same financial room fully available may lead to a result that cannot be implemented in practice.
This assessment often requires cooperation between a lawyer and a financial expert. The aim is a well-founded settlement. A general statement that there is always double counting, or that this can never happen, does not help in a specific case.
How do you pay a buy-out sum without bringing the business to a standstill?
If a payment is owed, it must be considered how it can be made. Options may include financing, payment in instalments or setting it off against other assets. Each option has its own risks. A payment arrangement requires clear due dates, interest arrangements where appropriate and provisions for non-performance.
The receiving partner has an interest in sufficient security. The business owner has an interest in an arrangement that does not unnecessarily damage the running of the business. Therefore discuss what is available, what cooperation from a bank is needed and what happens if financing falls through. Do not commit to an obligation based on a loan that has not yet been approved.
The tax treatment may also differ depending on the solution. Have those consequences examined in advance. A legal agreement on division is no guarantee that a transfer or payment will be tax-neutral.
What if you run the business together?
In that case, both the relationship and the business partnership must each be wound up. A divorce order does not automatically remove a partner from the partnership, nor does it automatically terminate an employment contract. Shareholder and partnership agreements may contain rules on transfer, valuation, competition and decision-making.
During the process, arrange who approves payments, who communicates with staff and customers and how access to systems is managed. Prevent one partner from blocking the business or deleting valuable information without consultation. At the same time, a temporary arrangement may be needed to prevent abuse or withdrawals of funds.
The family law settlement must be consistent with company law and, where relevant, employment law. Have the arrangements checked for that consistency. A solution that concludes the divorce on paper but leaves the business without an authorised management board or workable access to the bank is not yet complete.
A practical step-by-step plan
- Establish the form of relationship, the prenuptial agreement and the applicable law.
- Map out ownership, debts and flows of money between private assets and the business.
- Make temporary arrangements about running the business, income and ongoing costs.
- Define the valuation assignment and the financial documents required.
- Calculate the property settlement and maintenance separately, explaining how they are connected.
- Check the feasibility, the tax consequences and the necessary cooperation of third parties.
- Record not only the result, but also the implementation, deadlines and security.
Fictitious example
A business owner incorporated a bv before the marriage and remains its shareholder during the marriage. The partners initially think that the bv therefore falls entirely outside any financial discussion. However, the prenuptial agreement contains a periodic settlement clause. In addition, money from a joint account was paid into the business.
The assessment then starts with the deed, the settlement that was never carried out and the specific investment. Only after that does a valuation follow. The example shows why the date of incorporation alone is not sufficient to determine the rights of both partners. It says nothing about the outcome of any individual case.
Frequently asked questions
Is my ex-partner always entitled to half of my business?
No. The form of relationship, the matrimonial property regime, ownership and any rights to settlement or compensation determine what must be settled. The trade name or KVK registration does not decide this on its own.
Does a prenuptial agreement protect me against every claim?
Not necessarily. Read the full deed. A settlement clause or a transfer of value may lead to a financial claim despite separate ownership.
Is the value the same as the equity on the balance sheet?
Not automatically. The appropriate valuation method and the underlying assumptions must be substantiated. Book value, earning capacity and available liquidity are different concepts.
May I pay out dividends during the divorce?
That requires an assessment of the company law requirements, the financial situation and the consequences for the settlement. Do not take a unilateral decision on this solely to influence your position in the divorce.
Can my accountant arrange everything?
The accountant can provide financial information and expertise. The legal classification of agreements, applications to the court and claims also requires a legal assessment. Ensure a clear division of tasks and check for possible conflicts of interest.
Does the business have to be sold?
Not automatically. First examine whether continuing the business and paying any claim are feasible. A sale may be an option, but it does not follow merely from the fact that the partners are divorcing.
Discuss your divorce with Arslan Advocaten. State the legal form of the business and whether there is a prenuptial agreement. The first meeting can then focus on the documents and decisions that make the difference in your situation.
Read also
- Interim measures in divorce proceedings
- Ex-partner refuses to sell the home
- Living together and separating
- Dividing pensions after divorce
- All information about family law
Sources and legal basis
- Dutch Civil Code, Book 1, in particular Articles 87, 94, 95a and 141.
- KVK on divorcing when you own a business.
