NETHERLANDS Trends and Developments Contributed by: Sandra Verburgt, Delissen Martens Advocaten
then that partner has a right to compensation from the other partner. Article 3:172 of the Dutch Civil Code implies, in so far as it is relevant here, that the partners must contribute proportionately to the expenses arising from acts performed for the benefit of the joint property. These must be acts carried out for the maintenance and upkeep of the joint property. The taking out or repayment of a loan by a member to finance the common property does not constitute such an act. ii) Statute of limitations The question now arises whether the extension ground for prescription from Article 3:320 and Article 3:321(1)(a) and (g) of the Dutch Civil Code also applies to informal cohabitants. This is still not decided. A legal claim for performance of a contractual obligation expires five years after the due date (Article 3:307 of the Dutch Civil Code). This applies, for example, to a claim for dam - ages based on an agreement or a contractual right of recourse. The same applies to a claim based on undue payment (Article 3:309 of the Dutch Civil Code). This claim expires five years after the creditor has become aware of both the existence of their claim and the person of the beneficiary and, in any case, 20 years after the claim arose. As this is a claim between informal cohabitants, the limi - tation period will normally be five years. After all, the recipient will be known. A claim based on unjust enrichment is also generally time-barred after five years and, in any case, 20 years after the claim arose (Arti - cle 3:310 of the Dutch Civil Code). In this case, too, the recipient will be known – given that they are an ex-partner. In all other cases, the claim expires after 20 years (Article 3:306 of the Dutch Civil Code).
The question is whether it is reasonable to expect informal cohabitants to claim compensation from their partner during their cohabitation, when the legislator did not consider this desirable for spous - es and registered partners. After all, any good rela - tionship can be destroyed by taking legal action during the relationship. This issue is still unde - cided. Some judges apply the extension ground for married and registered partners under Article 3:320 and Article 3:321(1)(a) and (g) of the Dutch Civil Code analogously to informal cohabitants (eg, The Hague Court of Appeal, 4 February 2020, ECLI:NL:GHDHA:2020:409). Other judges apply the law strictly and do not extend the limitation period (eg, Arnhem-Leeuwarden Court of Appeal, 7 September 2021, ECLI:NL:GHARL:2021:8479 and The Hague Court of Appeal, 13 December 2022, ECLI:NL:GHDHA:2022:2458). In a Supreme Court case dated 8 November 2024 (ECLI:NL:HR:2024:1598), a decision from The Hague Court of Appeal was quashed on the grounds that the court had wrongly accepted an offer of proof by the cohabitee who asked for a share in the surplus value of a property in the name of the other partner based on a tacit agreement. This matter has now been referred to the Amsterdam Court of Appeal for a further decision. However, in the advice of the Advocate General to the Supreme Court dated 9 February 2024, the concept of prescription – and, in particular, the analogous extension of Article 3:320 and Article 3:321(1)(a) and (g) of the Dutch Civil Code to informal cohabitants – was dealt with as fol - lows. “ As such, the limitation regime for informal cohabitants is clear: Articles 3:306‒310 of the Dutch Civil Code apply directly to their rights of action. Thereby, the starting point is that the
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