NETHERLANDS Trends and Developments Contributed by: Sandra Verburgt, Delissen Martens Advocaten
Property relations Spouses married without a marital contract are married under the statutory community of prop - erty. In short, this means that everything they acquire during marriage will be common property, but premarital capital, inheritances and gifts are private property. Each spouse has a 50% share in the community of property. Spouses may deviate from this by marital contract. Article 1:80b of the Dutch Civil Code declares that the sections on the community of property and marital contracts also applies to registered partnerships. If spouses are married without any community of property, a right to compensation arises if prop - erty is taken from one spouse for the benefit of the other spouse, even if there is no contractual basis for the taking and the taking does not fulfil an overriding obligation of morality and decency (natural obligation). If the parties are married in a community of property, a right to compensa - tion may arise if one spouse’s private property is used for the benefit of the community property or vice versa. Article 1:87 of the Dutch Civil Code provides for the right of one spouse to claim compensation from the other spouse for an investment with private (excluded) capital in the property of the other spouse or the community of property if applicable. In principle, the claim is equal to the proportion of the investment in the property at the time of repayment (investment theory). The spouses may deviate from this rule by marital or partnership agreement. In that case, the claim may be equal to the proportion of the investment in the property at the time of purchase (nominal repayment). In the case of spouses and registered partners, any claim for compensation cannot be time- barred during the marriage or registered part -
nership. The limitation period for bringing such a claim is extended by six months from the end of the marriage or registered partnership if the limi - tation period would expire during the existence of the marriage or registered partnership (Article 3:320 and Article 3:321(1)(a) and (g) of the Dutch Civil Code). This was because it was considered undesirable for spouses or registered partners to have to take legal action against the other spouse or registered partner during the marriage or registered partnership in order to prevent their right from being extinguished or time-barred. Property relationship between cohabitants In cohabitation agreements, the sections on the community of property can be declared applica - ble. Only in this case can a cohabitant invoke the law in the event of separation. However, if there is no such clause in the cohabitation agreement or if the cohabitants have not entered into any agreement, a cohabitant cannot apply for any share in the ex-cohabitee’s wealth based on the Family Code. The landmark judgment is HR 10 May 2019, ECLI:NL:HR:2019:707. In this Supreme Court judgment, it was ordered that the starting point is that the property relationship between partners who live together on the basis of an affective relationship is not governed by the rules set out in Title 1.6, Title 1.7 and Title 1.8 of the Family Code for spouses and registered partners, and that these rules cannot be applied by analogy to the relationship between informal cohabitants. The court of appeal therefore correctly held that the man’s reliance on an analogous applica - tion of Article 1:87 of the Dutch Civil Code was unfounded and that the question of whether the woman could claim compensation from the man for her investment in the house had to be assessed on the basis of the general law of obli -
234 CHAMBERS.COM
Powered by FlippingBook