Since the legislative amendment on 1 January 2018, Dutch matrimonial property law has changed significantly. Whereas previously every marriage was automatically entered into under community of property, a limited community of property now applies. This adjustment has major consequences for the division of assets and debts during and after the marriage. In this article we discuss the most important aspects of this legislative amendment and what this means for married couples.

What does the new matrimonial property law entail?

Under the new rules of the limited community of property, not all assets and debts are automatically joint. The main points are:

1. Premarital assets and debts remain private
   Assets and debts that one of the partners had before the marriage remain personal property. This means that, for example, a house purchased before the marriage remains private property after a divorce, unless other arrangements have been made.

2. Inheritances and gifts are private
   Inheritances and gifts received during the marriage do not fall into the community of property, unless the donor or testator has explicitly indicated that they should.

3. Jointly accumulated assets are divided
   All assets acquired during the marriage, such as savings and jointly purchased items, fall within the community of property and are divided upon divorce.

Why was the law changed?

The main reason for the change was to create a fair division of assets and debts. In the old system, where everything automatically fell into community property, one partner’s debts could be entirely shifted onto the other. The new rules ensure that premarital debts and assets remain outside the community.

Advantages of the new system

1. Protection of personal assets
   Premarital property remains private, which is especially beneficial in the event of a divorce.

2. Inheritances and gifts remain protected
   Under the old system, inheritances or gifts could form part of the community property. In the new system, these remain private unless agreed otherwise.

Drawbacks and points to note

Although the revision offers advantages, there are also some complications:

1. Administrative obligations
   Spouses must keep proper records of their personal assets and debts. In the event of a divorce, it must be proven which assets were acquired before the marriage. Poor record-keeping can lead to the loss of private property.

2. Debts during the marriage
   Debts incurred during the marriage can still affect the joint estate. Creditors can target the community of property.

Departing from the default regime: prenuptial agreements

Partners can choose to draw up prenuptial agreements if they wish to depart from the limited community of property regime. This can be especially useful if one partner has their own business and wants to protect it in the event of a divorce. Prenuptial agreements offer flexibility, but they must be set out in a notarial deed.

Conclusion

The introduction of the limited community of property in 2018 has major implications for the division of assets within a marriage. It provides greater protection for personal property, but requires careful record-keeping. It is wise to consider the legal and financial consequences of marriage in advance. If the default arrangement does not fit your situation, it is advisable to consider prenuptial agreements.

Do you have questions or want advice about your specific situation? Feel free to contact one of the family law attorneys at Arslan Advocaten. We are ready to help you.