NETHERLANDS Law and Practice Contributed by: Sandra Verburgt, Petra Beishuizen and Ivo Janssens, Delissen Martens Advocaten
is mostly made to insulate the family against a spouse-entrepreneur’s business creditors during the marriage. Netting Covenants Many Dutch marital contracts provide for a separation of any community of property with a so-called periodical netting clause. By adopt - ing such a clause, the parties undertake that they will settle their incomes annually after the household costs have been paid. What remains after deducting the household costs from the net incomes will be settled equally, which means 50/50. These periodical netting clauses have been adopted frequently since the 1970s, resulting in a large stream of case law. In 2002, this case law was codified in the Law on Netting Clauses. If, at the end of the marriage, a periodical netting obligation agreed in the marital contract is not complied with, then the present capital is pre - sumed to have been formed from what was net- ted – unless there is a different obligation, owing to the requirements of reasonableness and fair- ness with regard to the nature and extent of the netting obligation. In practice, the settlement of this regime will provide the same financial result as the settlement of the community of property. Other Systems The spouses can agree to a “less cold” exclu - sion contract – for example, they can agree to an exclusion of community of property during their lives, but with a so-called final netting clause or “as if” clause in the event the marriage ends by death or in the event the marriage ends by either death or divorce. Although the parties have excluded any community of property during their marriage, they agree to settle their matrimonial regime “as if” they were married in communi - ty of property. De facto, this means that they
will divide the balance of each spouse’s capital equally (50/50). Such a clause is mostly made to avoid high tax claims for the surviving spouse in the event of death. The “Community of Benefit and Income” and “Community of Profit and Losses” are matri - monial regimes that lapsed on 1 January 2012. Spouses may still adopt these systems but will need to elaborate that system in full in the mari- tal contract. Spousal maintenance cannot be waived in a prenuptial agreement. Marital Contracts in Court Proceedings As the concept of marital contracts is codified in Dutch matrimonial property law, marital contracts will be upheld by the Family Court and therefore matrimonial settlements upon divorce or after divorce (in the case of separate proceedings) will be determined under the marital contract. The statutory regime will apply in the unlikely event that the marital contract is not upheld. In such case, there will likely be a defect in either the marital contract itself or during the drafting stage of the marital agreement. Examples can be found in the Supreme Court judgments dated 20 January 1989 (NJ 1989, 766)(“Civil-Law Notary of Groningen”) and 9 September 2005 (NJ 2006, 99) (“Marital Contract of Zeeland”), respectively. 2.6 Cohabitation Cohabitation Without Contract If the partners have not signed a cohabitation agreement, in which they have arranged for their financial affairs after the breakdown of their rela - tionship, then there is no statutory law or safety net that provides for certain rights or obligations – irrespective of whether they have children or not. Cohabitants do not acquire any rights by virtue of length of cohabitation or children born from their relationship. If they do have a cohabi - tation agreement, this is subject to the contrac -
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