Getting married is a special event full of love and commitment. Still, it’s important to stay practical and arrange certain matters properly before you tie the knot. Prenuptial agreements help you start your future together with peace of mind by making arrangements about assets and debts. In this article, we explain what prenuptial agreements are, why and when you should set them up, and how they can affect you during and after your marriage.

What are prenuptial agreements?

Prenuptial agreements are arrangements between prospective spouses about the division of assets, debts, and other financial matters during the marriage and in the event of a divorce. These arrangements are laid down in a notarial deed and are intended to provide clarity about the rights and obligations of both partners.

With prenuptial agreements, you decide for yourselves what belongs to whom and how financial matters are arranged. This can, for example, offer protection if one of you has a business of their own, or to keep assets and debts separate from each other.

What exactly do you arrange with prenuptial agreements?

In prenuptial agreements (or partnership agreements) you make concrete arrangements together about who owns which assets and debts during the marriage or registered partnership. For example, you set out:

• What remains private property and what becomes joint property
• How income and expenses are divided
• How you handle assets, gifts, or inheritances
• What happens to assets and debts if you separate

You always draw up these agreements with a notary, so that everything is officially and legally binding. This prevents ambiguities and unpleasant surprises, now and in the future.

Making arrangements about assets upon death

A frequently asked question is whether you can also make arrangements in the prenuptial agreement for the event that one of you passes away. The answer is: yes, you certainly can. For example, you can specify what happens to the joint or personal assets upon death, even if you opt for ‘cold exclusion’ – where all assets and debts remain strictly separate during the marriage.

With a smart clause in the prenuptial agreement, you can agree that upon death the assets will still, wholly or partly, benefit the surviving partner. The portion that belongs to the deceased then goes by law to their heirs, unless you choose to deviate from this. You can jointly lay down clear arrangements about this, for example in combination with a will.

This provides peace of mind and clarity for both partners – not only during the marriage, but also for the settlement afterwards.

What is cold exclusion?

‘Cold exclusion’ is a specific form of prenuptial agreement in which all assets and income remain strictly separate. In effect, everything that was yours, before and during the marriage, remains entirely yours – and the same goes for your partner. Nothing is shared: not your savings, not your house, and not any debts either. Each keeps their own assets, without building up joint property.

This system may sound a bit businesslike, but it can actually provide clarity, for example if one of you runs business risks or wants to protect private assets. It’s important to know that under cold exclusion even income during the marriage is not shared. This provides extra clarity, but it also means that partners are financially entirely on their own.

Why and when to marry with a prenuptial agreement?

Before 2018, the default in the Netherlands was that marriages were entered into under a full community of property, in which all assets and debts were joint. Since 1 January 2018, the limited community of property applies, under which only the assets and debts that arise during the marriage are joint. Assets and debts from before the marriage remain personal.

Different forms of prenuptial agreements

With prenuptial agreements you can make your own arrangements about how your assets and debts are divided. There are various options, such as:

• Community of property: You choose to share (almost) everything together, just as was customary before 2018.
• Full separation of assets: Everything remains strictly separate; each retains their own assets, income, and any debts.
• Tailor-made agreements: You can make all kinds of agreements that fall in between, for example about the division of the home, income, how to handle a personal business, pension, or how inheritances and gifts are treated.

By deciding together what belongs to whom, you avoid ambiguities and can take into account personal situations such as having your own business or protecting family capital.

Still, it may be wise to draw up a prenuptial agreement, for example in the following situations:

• Protection of your own business: Prenuptial agreements can ensure that one partner’s business remains outside the community of property.
• Limiting financial risks: This prevents the debts of one partner from affecting the assets of the other.
• Inheritances or gifts: You can stipulate that inheritances and gifts remain separate property, even after marriage.
• Division of assets upon divorce: Marital agreements provide a clear guideline for the division of assets and debts in the event of a divorce.

Drafting marital agreements (also after marriage)

Marital agreements are drawn up before marriage, but can also be agreed during the marriage. For this, both partners must go to a civil-law notary. Existing marital agreements can also be amended. This can be important, for example, if the financial situation changes, such as when starting a business or in anticipation of an inheritance.

When do new or amended marital agreements take effect?

The new or amended marital agreements take effect as soon as you have signed the notarial deed at the notary. From that moment, the arrangements made are legally valid and in force. In some cases, for example if you have been married for less than three years and this is the first time you are drawing up marital agreements, you can coordinate with the notary for the arrangements to apply retroactively from the date of your marriage. So always discuss with the notary what options are available in your situation.

Amending marital agreements

It is possible to amend the terms during the marriage. This can be useful if circumstances change, such as starting your own business or a different financial situation. This again requires a notarial deed, in which the amended arrangements are recorded.

Joint and several liability when amending marital agreements

Many couples wonder whether they remain jointly and severally liable for joint debts if they change their prenuptial agreement, for example when a debt is henceforth put in only one name. The answer is that joint and several liability generally continues to exist for debts that were taken out jointly, even if on paper they are allocated to one partner.

This means that the creditor may pursue either partner for the full amount, regardless of any new arrangements in the prenuptial agreement. If one of the partners ends up paying the debt in full while, under the agreement, the other was responsible for it, the partner who overpaid can reclaim that amount from the other partner. If there is a dispute about this, the court can be asked to decide.

Always seek proper advice from a notary so you know exactly what the consequences are of amending the prenuptial agreement for your personal situation.

What are the costs of prenuptial agreements?

The costs for drawing up a prenuptial agreement vary depending on the notary or mediator you choose. On average, the costs for a prenuptial agreement at a notary start at around €950,-, including registration in the marital property register. If you opt for premarital mediation, in which you draw up the terms together with a mediator, the costs can range between €350,- and €800,- (excluding VAT). Notary fees will still be added to have the deed executed.

Prenuptial agreements in the event of a divorce

If you decide to divorce and have a prenuptial agreement, assets and debts are divided according to the terms in that agreement. This provides more clarity and can prevent lengthy and complicated divorce proceedings. However, some matters can still be disputed, for example if not all scenarios are described clearly enough.

Exception when married for less than three years

Have you been married for less than three years and want to draw up a prenuptial agreement (for the first time)? In some cases it is possible for these terms to apply retroactively from the date of the marriage. To do this, you must make clear arrangements together and record them with the notary. This can be useful if you decide to formalize matters later but still want the terms to be effective from the start of your marriage.

Please note: this is not always automatic; some situations require extra attention or permission. It is therefore wise to obtain legal advice in good time so that you know exactly where you stand.

Putting a joint debt in one person’s name: is that possible?

Suppose you want to put a debt you took on together in the name of one partner after making a prenuptial agreement. Is that even possible? In practice, this often proves more difficult than expected.

For most debts, such as a joint loan or mortgage, you are both jointly and severally liable. This means that the bank or other creditor can always turn to either partner for the full amount, regardless of what is agreed in your prenuptial agreement. Even if you both agree that one partner will take over the debt alone from now on, the creditor still retains the right to pursue both of you.

If the partner who, according to the prenuptial agreement, would no longer be responsible subsequently pays, a right of recourse usually arises. This means that this partner can reclaim the amount paid from the other partner. If the other partner does not cooperate, you can take the matter to court. In such a situation, always consult a notary about the best approach to avoid further conflict.

It is therefore advisable, in the case of joint debts, to discuss in advance whether and how you can split them, and to make clear arrangements about the allocation of these obligations. That way, you both know where you stand in the event of a divorce or a change to the terms.

What are you not allowed to agree in a prenuptial agreement?

Although you have a lot of freedom when drafting prenuptial agreements, certain arrangements are not permitted by law. It is also important to know that the law does not allow spousal maintenance to be excluded in prenuptial agreements. Spousal maintenance must therefore still be calculated in the event of a divorce, unless the recipient waives it.

Furthermore, prenuptial agreements may not conflict with the law or with public morals. For example, you cannot make arrangements intended to disadvantage one of the partners, or arrangements that require either partner to waive fundamental rights. Think of agreeing not to pay child support, or stipulations that completely sideline the statutory division of pension rights—these are not allowed either.

In short: the notary or mediator will check whether your arrangements are legally valid, but it is good to know in advance what limits the law sets on prenuptial agreements.

What if no arrangements have been made about the division of assets upon divorce?

If your prenuptial agreement does not contain clear arrangements on how assets should be divided in a divorce, you will still need to discuss and record this together. This often happens when drafting the divorce settlement agreement. If certain matters remain unclear or disagreements arise, negotiations may still be necessary or the court may have to decide on the division. It is therefore wise to include as many scenarios as possible in the prenuptial agreement in advance, so that disputes—and extra legal costs—are avoided as much as possible.

What happens to prenuptial agreements upon death?

Prenuptial agreements are not only relevant in a divorce; they also matter when one of the partners dies. In principle, the marriage ends at the moment of death, and with that the original provisions of the prenuptial agreement lapse. Still, you can include special provisions in the agreement for this situation.

Partners often choose, in the case of so-called cold exclusion (where the assets remain strictly separate), to agree that upon death the assets will still be divided equally. This means that the deceased partner’s estate is divided according to the agreed terms, usually with the heirs as beneficiaries.

It is therefore wise to consider the consequences of death not only when drafting a prenuptial agreement, but also when drawing up a will. This helps avoid unpleasant surprises and ensures that your wishes are clearly laid down.

What if your ex-partner does not cooperate with the repayment of a joint debt?

Do you have a debt together, but your ex-partner refuses to contribute? Then, as jointly and severally liable debtors, you both remain responsible to the creditor. This means the bank or other lender may claim the entire outstanding amount from either of you individually—even if you agreed between yourselves that one of you would pay the debt.

If you have been forced to pay the full amount while, under the prenuptial agreement, your ex-partner was (partly) liable, you can recover that amount from your ex. If your ex does not cooperate in a fair division, you can take the matter to court to reclaim your share. It is wise to seek advice first from a specialized notary or attorney. That way you know which steps are best in your specific situation.

Arrange prenuptial agreements with a personal touch

More and more couples choose to draw up prenuptial agreements through a premarital mediator. In this process, the future of your marriage is discussed in detail and personalized arrangements are tailor-made. By engaging a mediator, you can set out your financial and practical matters in a constructive way, ensuring the prenuptial agreements are fully aligned with your wishes.

At Arslan Advocaten we offer expert guidance in drafting prenuptial agreements. Whether you want advice before the wedding or wish to amend the terms during the marriage, our family law attorneys are here to help. Feel free to contact us for more information and advice.