NETHERLANDS Trends and Developments Contributed by: Sandra Verburgt, Delissen Martens Advocaten
gations. In doing so, it is appropriate to examine whether there is an agreement between informal cohabitants that (also) regulates the property law aspects of their cohabitation (Article 6:213 of the Dutch Civil Code), taking into account the sup - plementary effect of reasonableness and fairness referred to in Article 6:248(1) of the Dutch Civil Code. Such an agreement may exist because the informal cohabitants have concluded a writ - ten cohabitation agreement or have expressly or tacitly agreed on who is to bear the costs of their cohabitation or certain expenses. In addition, it is possible that one of the informal cohabitants – if the conditions for undue pay - ment (Article 6:203 of the Dutch Civil Code) or unjust enrichment (Article 6:212 of the Dutch Civil Code) are met – has a claim on one of these grounds for restitution or reimbursement of cer - tain expenses that were given to or benefited the other informal cohabitant. i) Rights of cohabitants to compensation for property However, this does not alter the fact that there is a legal relationship between informal cohabit - ants, which is also governed by the principles of reasonableness and fairness. The fact that informal cohabitants have refrained from enter - ing into a legally regulated form of cohabitation (marriage or registered partnership) or from mak - ing express or tacit agreements on the property aspects of their cohabitation does not prevent this. In practice, the agreement to cohabit inevi - tably affects their property relations. Even if the right of one cohabitant to compensa - tion from the other cohabitant in respect of cer - tain expenses cannot be assumed on the basis of an agreement concluded between the parties or on the basis of the other legal provisions of
Book 6 of the Dutch Civil Code, such a right may arise from the requirements of reasonableness and fairness referred to in Article 6:2(1) of the Dutch Civil Code in connection with the particu - lar circumstances of the case. Another landmark judgment in this regard was rendered by the Dutch Supreme Court on 17 November 2023, ECLI:NL:HR:2023:1571. In this matter, the woman and the man had lived together for a long time on the basis of an affec - tionate relationship. Initially each had their own home. The woman sold her home in 2002 and subsequently moved in with the man. At some point in time, the parties jointly bought a house, in which they started living together. They took out a savings deposit mortgage and a bridging loan. Linked to the savings deposit mortgage was a savings policy called “savings deposit insurance”. The man sold his home after this. The proceeds from his home amounted to EUR226,264.79. Subsequently, the man repaid the bridging loan of EUR214,000, from his own funds. Years later, the parties entered into a notarised cohabitation agreement. In this cohabitation agreement, the parties had not made any spe - cific provision for the repayment of the bridging loan taken out by the man. The affective relation - ship ended at some point thereafter. The woman left the joint home. Since then, the man had lived there alone. The man claimed compensation from the woman for his investment in the jointly owned home, including half of the repayment of the bridging loan. The Supreme Court rejected the man’s claim to the right to compensation. Article 3:172 of the Dutch Civil Code does not imply that if a property is jointly owned by infor - mal cohabitants and one partner has contributed to the financing of the purchase of that property to a greater extent than his share in the property,
235 CHAMBERS.COM
Powered by FlippingBook