Ga naar de vernieuwde website van Advocaten.nl
: Under Dutch law, you can marry either in general community of property or under the terms of a marriage contract. In other countries, the law is different. You may be confronted with foreign rules of law if you marry someone of a different nationality or live or own property abroad. On 1 st September 1992 the 1978 Hague Convention on the Law applicable to Matrimonial Property Regimes entered into force in the Netherlands. The Convention is so called because it was concluded in The Hague in 1978. This Convention contains rules determining whether you are subject to Dutch matrimonial property law or to the corresponding law of another country. This booklet will give a brief outline of the contents of the Convention, as well as many short examples of its different consequences.
| FOREWORD |
Marriage will have many legal consequences for you and your spouse, such as the legal
relationship with the children born of your marriage or the maintenance obligations which
you will have towards each other. It of course also has consequences for your property and
that of your spouse. Rules of law referred to as matrimonial property law apply to that
property.
If you take no steps to arrange things otherwise, Dutch law stipulates that your total
property is shared by you and your spouse.
By property is meant the assets and debts you both had before and those acquired or
incurred during your marriage. This is known as " marrying in general community of
property". lf you wish, you can depart from these general provisions by concluding a
marriage contract before a notary.
CONTENTS
If you marry in the Netherlands you may make a number of arrangements with regard to your property. You can choose the statutory regime or make a marriage contract.
STATUTORY REGIME
Under Dutch law, you and your spouse's assets and debts are shared from the moment you
marry. This is known as general community of property. If the marriage ends as the result
of divorce or the death of one of the partners, the property is, in principle, divided in
such a way that each partner receives an equal share of the assets and debts. This
statutory regime applies if you and your spouse have made no other arrangements
yourselves.
MARRIAGE CONTRACTS
You can depart from this statutory regime by concluding a marriage contract with your
spouse. In this way, for example, you can avoid being held liable for your spouse's debts.
Furthermore, on the termination of your marriage by death or divorce, the debts and assets
are divided according to the terms of the contract.
Such a contract needs to be drawn up by a notary, who will ensure that its provisions are entered in the public register of matrimonial property. This register is accessible to the public at the registry of the court in the district in which you were married. A creditor can thus consult the register to ascertain whether your property is subject to the provisions of a marriage contract, and, if so, what those provisions are. The provisions of your contract are subject to certain restrictions; the notary may only include provisions permitted by law.
CONTRACTS MADE BEFORE OR DURING MARRIAGE
You may conclude a contract both before and during your marriage. Drawing up a contract
during marriage will cost more time and money. Contracts drawn up prior to marriage enter
into force on marriage.
You are going to marry a person who has his or her own business. You have saved a considerable amount of money and you will probably inherit more from your parents. You draw up a marriage contract to prevent your spouse's creditors making claims on your property should his or business fail.
If you wish to draw up a contract after your marriage, you need to have been married
for at least one year and to have
the permission of the district court. You Will also have to employ the services of a
lawyer.
If you conclude a contract during your marriage, it enters into force with respect to you
and your spouse from the moment it has been drawn up by the notary. In relation to other
people, however, it has no effect until it has been approved by the court and has been
entered in the register of matrimonial property.
When you married neither you nor your spouse had many possessions and a marriage contract did not seem necessary.
However after six years of marriage, you have two children, your own home and both of you have jobs. Your spouse is not
very statisfied with his or her job and wants to start a business. In order to minimise the risk, you draw up a contract with the permission of the court, stipulating that the house is placed in your name and that your spouse has sole liability for any debts incurred by the business.
Other countries have their own rules of matrimonial property law, which are often
different from those applicable in the Netherlands. The statutory regime applicable in
other countries seldom consists of general community of property. In those countries, for
example, partners retain exclusive ownership of their own property even after marriage:
one spouse can make no claims on the other's property.
In other countries too, scope usually exists to depart from the statutory regime by
drawing up a marriage contract. The extent to which this is possible is laid down in the
law of each country.
You may be confronted with foreign law if there is an international dimension to your marriage.
There is an INTERNATIONAL DIMENSION to your marriage if you and/or yourspouse or future spouse:
There is NO INTERNATIONAL DIMENSION to your marriage if;
You do not fall automatically within the scope of the Dutch matrimonial property law.
The rules of private international law determine which law is applicable to you. Each
country has its own rules relating to private international law; the rules of Dutch
private international law are, for example, different from those of Germany.
In the Netherlands, the rules of Dutch private international law apply. You should be
aware, therefore, that if you have assets outside the Netherlands the authorities there
will apply not the Dutch rules but the rules of private international law of the country
in which you have your assets.
The application of different national rules of private international.
Law can lead to different, sometimes contradictory results.
To prevent this, countries conclude conventions or treaties. Countries which are party to
a convention apply the rules it contains. In 1978, the Hague Convention on the Law
applicable to Matrimonial Property Regimes was concluded. It entered into force on 1
September 1992. Three countries, namely the Netherlands, France and Luxembourg, are
presently parties to the Convention.
TO WHOM DOES THE CONVENTION APPLY ?
The Convention applies to everyone marrying after 1 st September 1992. Its provisions will
apply if matrimonial property has to be divided - on the death of one of the partners or
in the event of divorce - in any of the countries which is a party to the Convention.
This division of property is officially known as the settlement of the matrimonial
property. The provisions of the Convention will also apply if a problem of another nature
relating to matrimonial property arises, for example in the case of bankruptcy.
WHAT POSSIBILITIES DOES THE CONVENTION OFFER?
CHOICE OF THE APPLICABLE LAW
The Convention provides you with the opportunity to choose which country's law should
apply to your matrimonial property. This is known as designating the applicable law.
REASONS FOR CHOOSING THE APPLICABLE LAW
If you choose the applicable law, you will know in advance which law will apply if, for
example, your matrimonial property is to be divided. This is because your choice remains
valid. Account will be taken of your choice in all countries which are parties to the
Convention. A designation of the applicable law is highly recommended for all marriages in
which there is an international dimension, as you have the guarantee that your choice will
in any event be respected in the Netherlands and in all other States which are parties to
the Convention. It is therefore essential that you and your notary decide whether you will
make a designation. You must, however, keep in mind that the designation you make in the
Netherlands may not always have the desired effect in countries which are not party to the
Convention. These countries may not regard your choice as valid.
WHEN MAY YOU CHOOSE?
You may choose the applicable law either before or during your marriage. You may also
alter your choice during your marriage. In the Netherlands you do not need the prior
permission of a court.
WHAT CHOICES DO YOU HAVE?
The Convention does not allow you to choose the law of any country you wish. You may only
choose the law of a country with which you have ties. Under the provisions of the
Convention you may choose the law of the country;
The law chosen applies to the entire matrimonial property (both assets and debts). You may however, make an exception for real estate, for example a house, for which you may choose the law of the country in which it is located. This is an important consideration as real estate is subject to peremptory regulations in certain countries. Departures from such regulations are not permitted.
HOW DO YOU DESIGNATE THE APPLICABLE LAW?
The way in which you designate the applicable law needs to be in accordance with the rules
of form of the country in which you make the choice or of the country whose law you
choose.
The same rules as those applicable to marriage contracts need to be followed. Your designation should, in any event, be recorded in writing. The document in which you record your designation must include the date and your own and your spouse's signatures.
N.B. Simply recording your designation of the applicable law constitutes a commitment
only for you and your spouse.
Your designation is not binding on other parties. If you wish to make it binding on other
parties too, you must have your designation registered
Your designation may be part of your marriage contract or it may be recorded at the same time. You may however make a designation of the applicable law without concluding a marriage contract.
You make a designation in the Netherlands for Dutch law.
The rules of form of Dutch law are applicable. Dutch law requires a notarial deed.
You are Dutch, but your future spouse is a British national.
You choose In the Netherlands for English or Scots law. Your designation may be recorded in two ways. As the Netherlands is the country in which you make your choice, you may choose for the Dutch rules of form, in which case you will need a notarial deed. You may alternatively choose for the rules of form under English or Scots law, being the law you have chosen. As the latter do stipulate a statutory procedure. In this case you may record your choice in a written document which includes the date and the signatures of both you and your spouse.
REGISTERING YOUR CHOICE
Parties other than you and yourspouse - for example creditors - are not obliged to accept
your choice of the applicable law unless it is registered, in which case the law you have
chosen, whichever it may be, will always apply. In order to register your choice, you need
to have a deed drawn up by a Dutch notary. If you fail to do so and you and your spouse
reside in the Netherlands, a creditor who is also a resident of the Netherlands is
permitted to assume that you are married under the Dutch statutory regime unless he or she
knows or is in a position to find out that this regime does not apply to you.
N.B. a creditor is considered to be aware of registration not earlier than fourteen days after it has taken place.
If your marriage contract and designation of the applicable law have been recorded in a
Dutch notarial deed, the notary will ensure that they are entered in the register of
matrimonial property.
A designation of the applicable law made during marriage may not be to the disadvantage of
other parties.
lf you have debts at the moment you make your designation, those debts are still governed
by the law applicable before you made your choice.
You are a Dutch national and you marry a French person. After your marriage, you both live in the Netherlands and you make
no further arrangements. Dutch law applies, which means that in this case you are married in general community of property.
You borrow a large sum of money. Before you have fully
repaid your debt you choose for French law which means that you are no longer married in general community of property.
The bank may however recover the debt from both you and your
spouse's assets if you fail to make the necessary payments.
General community of property still applies to this debt.
If you borrow the money fourteen days after your choice of law hasb een entered in the register of matrimonial property, the bank is deemed to be a ware that a different law applies to. It cannot then rely your property on the fact that you were first married in general community of property. Should you fail to make the necessary payments, French law determines the bank" s scope for recovery of the debt.
YOU ARE SETTLING IN THE NETHERLANDS
If you move to the Netherlands having lived abroad and having designated foreign law, you
should have your choice entered in the register of matrimonial property at the registry of
The Hague district court. Your entry must be made by means of a statement drawn up by a
Dutch notary. Other parties will then be aware of the fact that foreign law applies to
your matrimonial property.
IF YOU DO NOT CHOOSE THE APPLICABLE LAW
If you make no designation of the applicable law, the Convention contains certain
peremptory rules to establish which law is applicable to your matrimonial property regime.
The nationality of you and your spouse and your first country of residence after your
marriage are taken into account.
Three concepts of the Convention will now be explained, as well as the rules to be applied if you have made no designation of the applicable law.
STATE APPLYING THE NATIONALITY PRINCIPLE
Some States provide that the law of the country of which both partners were nationals on
marriage is applicable to their matrimonial property. When a State becomes a party to the
Convention, it may make a declaration to the effect that it is a State applying the
nationality principle. There are therefore States applying the nationality principle which
are parties to the Convention and others which are States not. All these States are
referred to (in this booklet) as, applying the nationality principle.
STATE APPLYING THE DOMICILE PRINCIPLE
Other States provide that the law of the country in which both spouses have established
their domicile or habitual residence (referred to in this booklet as residence) directly
after marriage is applicable to their matrimonial property.
A State not submitting a declaration, to the effect that it is a State applying the
nationality principle on State a party to the Convention, is a States applying the
domicile principle. There are therefore States applying the domicile principle which are
parties to the Convention and others which are not.
All these States are referred to as States applying the domicile principle in this
booklet.
COMMON NATIONALITY
If you and your spouse had the same nationality before marriage, you have, according to
the Convention, a common nationality. You also have a common nationality if one spouse
voluntarily acquires the nationality of the other either on or after marriage.
This is the case if one spous opts for the nationality of the other or does not choose
to refuse it if refusal is possible.
If you both have more than one common nationality you do not have a common nationality
under the terms of the Convention.
You and your spouse have both Dutch and ltalian nationality.
You obtained both nationalities voluntarily. According to the rules of the Convention you do not have any common nationality.
WHICH RULE APPLIES IF YOU DE NOT CHOOSE THE APPLICABLE LAW?
PRINCIPAL RULE.
If you made no choice of the applicable law with regard to your matrimonial property, the
law of the country in which you took up residence directly after your marriage applies.
You are a French national and your spouse is a national of Luxembourg. After your marriage you take up residence in the Netherlands. Dutch law thus applies.
N.B. The above examples and those below illustrate the law applicable in the Netherlands or in other countries which are parties to the Convention. You must however keep in mind that a different law may apply in countries which are not party to the Convention.
THREE EXCEPTONS TO THE PRINCIPAL RULE
There are three exceptions to this principal rule. These exceptions apply if you and your spouse have a common nationality.
FIRST EXCEPTION
You and your spouse have the States nationality of one of the States applying the
nationality principle which are parties to the Convention. In this case,the law of your
common nationality applies.
You and your spouse are both Dutch nationals. After your marriage you take up residence in Britain. Dutch law applies to your matrimonial property.
N.B . The above exception does not apply if before your marriage, you have both lived for a period of at least five years in a State applying the domicile principle and continue to live there after your marriage. The principal rule then applies, i.e. the law of the state of habitual residence.
You and your spouse are both Dutch nationals. You live in Britaln, a State applying the domicile principle, after your marriage and you both lived there for more than five years before you married. In this case, British law is applicable to your matrimonial property.
SECOND EXCEPTION:
You are both nationals of a State applying the nationality
principle which is not a party to the Convention. You both take up residence in a State
applying the nationality principle . The law of the country of which you share common
nationality applies, whether the country in which you live is a party to the Convention or
not.
You and your spouse both have German nationality. Germany is
a State applying the nationality principle, but is not a party to the Convention. After your marrlage you take up residence in the Netherlands. German law thus applies.
THIRD EXCEPTION
You have common nationality but after your marriage you take up residence in an other
country than your spouse. The law of State of your common nationality applies, whether you
have the nationality of a State applying the nationality principle or of a State applying
the domicile principle.
N.B . There are some more instances in which spouses have a common nationality. In all those instances the principal rule applies, i.e. the law of the State of residence.
You and your spouse are both British nationals. Britaln is a
State applylng the domicile principle and is not a party to the Convention. After your marriage, you take up residence in the Netherlands while your spouse remains in Britain. British law applies.
You and your spouse are both German nationals. Germany is
not a party to the Convention, but it is a State applylng the nationality principle. Your first place of residence is Britain. Britain is a State applying the domicile prlnclple, but ls not a party to the Convention. Britlsh law applies.
NO COMMON NATIONALITY, NO PLACE OF RESIDENCE IN THE SAME STATE
If you and your spouse have no common nationality or place of
State residence in the same your matrimonial property is
governed by the law of the country with which your property has the closest ties.
You are a national of the Netherlands and your spouse is a national of Luxembourg. After your marriage, you remain residents of your respective countries. You own a matrimonial home in the Netherlands, where your joint assets have also been invested. Dutch law is therefore applicable to your matrimonial property unless there are other circumstances tying it more closely to Luxembourg law.
THE LAW THAT IS APPLICABLE CAN CHANGE
If you have made no choice of law and you have not concluded a marriage contract, the law
applicable to your matrimonial property may suddenly be replaced by the law of another
country. You are not informed of this change, but it has certain consequences, for
example, for the recovery of debts or for the way in which your property will be divided
should your marriage end as a result of death or divorce. You should keep in mind that
your matrimonial property regime will then be governed by two systems of law
You can avoid such complications by designating the new law according to the correct
rules of form - whereby your entire property falls under the law appIicabIe after the
change. You may also choose the law of another country.
Other parties, for example creditors, may not be disadvantaged by your choice.
WHEN DOES SUCH A CHANGE OCCUR?
If you got married after 1 st September 1992 and you neither designated the applicable law
nor concluded a marriage contract, the law applicable on marriage might be replaced by the
law of another country if;
You have Dutch nationality and your spouse has French nationality. After your marriage you live in the Netherlands for a few years. Dutch law thus applies to your matrimonial property. After a few years you both move to Luxembourg, of which you become nationals after a number of years. Luxembourg law is applicable to your matrimonial property from that moment.
You both have Turkish nationality, marry in Turkey and take up residence there. Turkish law is applicable to your matrimonial
property. After a number of years you both move to the Netherlands. Once you have lived in the Netherlands for ten
years. Dutch law is applicable to your matrimonial property you are therefore now married in general community of property.
On marriage, you and your spouse are both Danish nationals. After your marriage you travel all over the world for a number of years while your spouse remains in Denmark. Danish law is applicable to your matrimonial property during this period Six years later you both settle in the Netherlands. Dutch law applies from that moment and you are married in general community of property.
REGISTRATION EVEN IF YOU HAVE NOT DESIGNATED THE APPLICABLE LAW.
If you have not designated the applicable law, it is in your interests to register, by
means of a notarial deed, the fact that, on the basis of the above mentioned rules, a law
other than Dutch law applies to your matrimonial property.
You and your spouse are nationals of Morocco. You both settle
in the Netherlands. Moroccan law applies to your matrimonial property you may instruct a Dutch notary to draw up a deed
stating that Dutch law does not apply to your property. This deed can be registered.
The statutory regulations relating to the entry into force of the Hague Convention also contain a provision on marriages concluded before 1st, september 1992. Under this provision, if you were married and designated the applicable law before the date on which the Convention came into force your designation is still valid, in principle, insofar as the old 1905 Convention does not apply to you. The rules of the former convention still apply in a number of cases.
THE 1905 CONVENTION AND CASE LAW
THE 1905 CONVENTION
In 1905 a number of countries - including the Netherlands - concluded a Convention on the
law applicable to matrlmonial property regimes. Under the terms of the Convention, the law
of the country of which the man was a national on marriage applied to the matrimonial
property. The Netherlands denounced the 1905 Convention on 23 August 1977. The rules of
this Convention are still applicable in a small number of cases. In the Netherlands, the
provisions of the old Convention apply to you if you were married before 23rd August 1977
and the man was a national of one of the countries which were parties to it. If, however,
you made a designation of the applicable law after 23rd August 1977, your designation is,
in principle, regarded as valid.
The 1905 Convention currently applies to ltaly, Portugal and Romania only.
CASE LAW
After the denunciation of the 1905 Convention, new rules were formulated in case law
establishing the law applicable in the majority of cases. If you made no designation of
the applicable law, your notary or the court will apply the rules established by the
supreme Court in its judgment of 10th December 1976.
These rules are as follows:
The rules given by the Supreme Court largely correspond to those contained in the Hague Convention. These rules apply to the matrlmonial property in its entirety.
The 1978 Hague Convention deals with a very important issue; the law applicable to a
married couple's matrimonial property and the consequences this may have for third
parties. The rules contained in the new Convention apply to you if you married after 1
September 1992.
The rules relating to the designation of the applicable law also apply, withth a few minor
exceptions, if you married before that date.
If your marriage has an international dimension, making a designation of the applicable law can prevent many problems arising. If you want further information, you may consult a notary practising in your neighbourhood. Addresses and telephone numbers are to be found in the telephone directory or send an Email to Advocaten.nl