NETHERLANDS Law and Practice Contributed by: Sandra Verburgt, Petra Beishuizen and Ivo Janssens, Delissen Martens Advocaten
Financial Disclosure Under Dutch procedural law, spouses must declare all information and evidence that is rel - evant to the case and the court’s decision. How - ever, there is no concept of contempt of court under Dutch law and therefore no procedural penalty for failing to declare all such information. In the event of a spouse finding out at a later stage that the other spouse did not declare all assets, there is a sanction in matrimonial law. It is also quite possible in financial proceedings to formulate a request to disclose specific financial information (843a Rv request). The request must be substantiated to prevent fishing expeditions. A spouse who wilfully conceals, keeps hidden, or causes the loss of an item of community prop - erty or property that forms part of the nettable capital under a marital contract – the value of which is not included in the statutory division or the settlement under the marital contract as a result – may not settle its value but must transfer it entirely to the other spouse or compensate the other spouse in full instead. The cheated spouse may initiate new proceedings for this. Trusts The concept of trust is alien to Dutch law. There - fore, if the settlor of an English or American trust is a Dutch national and the trustee is habitually resident in the Netherlands, then it could well be that a Dutch court will not recognise the trust because of insufficient nexus with the Nether - lands. Further, in the Netherlands, there is a concept of “forced heirship”, which may hinder the imple - mentation of the trust. Under Dutch law, a contri - bution of capital to a trust that violates the forced heirship is valid in principle. The forced heir must ask for that legitimate share in the estate. In such a case, the forced heir could partially nullify the
tions. Separate proceedings take two years or more. 2.3 Division of Assets Dutch matrimonial law is codified in the law and therefore matrimonial property regimes are the basis for Dutch matrimonial law. The statutory regime is the limited community of property, which means that the spouses share all property except inherited wealth, donations and premari - tal property. If spouses do not wish to be married under the statutory regime, they must enter into a marital contract. Dutch courts have no discretionary powers to divide or reallocate assets or resources other than that provided by the law or the marital contract of the spouses. In general, the scope of the discretionary powers of the court is very limited. The court may apply the concept of reasonableness and fairness only when the law provides for an open norm. The court is bound by the applicable matrimonial regime. If the par - ties have agreed in their marital contract that any community of property is excluded without any further settlement (so-called cold exclusion), the Dutch court cannot deviate from that principle and reallocate assets. In its judgment of 7 December 1990, the Supreme Court considered an exception to the statutory division. Deviation from the law can only be accepted in very exceptional circum - stances, whereby it would be unacceptable – according to standards of reasonableness and fairness – for one spouse to invoke the statutory division-by-half against the other spouse. In the case in question, a non-wealthy man married a much older, well-to-do woman in community of property. Five weeks after entering into marriage, the man took his wife’s life (Murder Marriage, NJ 1991/593).
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