NETHERLANDS Trends and Developments Contributed by: Sandra Verburgt, Delissen Martens Advocaten
limitation period can commence during the infor- mal cohabitation. However, exceptions to that starting point are conceivable. The rationale for the extension ground for spouses and registered partners may, of course, also apply to informal cohabitants. Indeed, even in the case of informal cohabitants, the performance of acts of interrup- tion could lead to disruption of the relationship. In my view, however, this does not mean that the ground for extension for spouses and registered partners can equally be declared applicable to informal cohabitants. In my view, such a cate- gorical approach requires a statutory basis, also in view of the restrictive enumeration that serves the purpose of legal certainty and the limits of the judge’s legislative function, which is why I believe that the court should be able to apply the restrictive ground to informal cohabitants .” Therefore, as a matter of principle (and separa - tion of powers), it is up to the legislator to declare Article 3:320 and Article 3:321(1)(a) and (g) of the Dutch Civil Code equally applicable to informal cohabitants or not. Nevertheless, the Advocate General considers it justifiable – on a case-by- case basis – to treat informal cohabitants in certain circumstances as spouses or registered partners (who are not legally separated) within the meaning of Article 3:321(1)(a) and (g) of the Dutch Civil Code. Whether there are grounds for such equivalence in a specific case will depend on all the relevant facts and circumstances of the case. Decisive factors for such equivalence could be: • whether the parties have lived together as spouses or registered partners (not legally separated); • factual circumstances, such as having (or having had) an affective relationship and a (permanent) common household; and
• circumstances of a more legal nature, such as whether a (written) cohabitation agreement has been concluded and whether there is a common home. If such circumstances are present, there may indeed be more reason to equate them with spouses or registered partners within the mean - ing of the extension ground in Article 3:321(1)(a) and (g) of the Dutch Civil Code. In summary, there is a great deal of uncertainty for informal cohabitants when it comes to claims for compensation for investments in the assets of the other (informal) cohabitant. It is certainly not excluded that these claims can be made, but the path to compensation is not as straight - forward as for spouses and registered partners. Pension equalisation Under Dutch law, pension rights built up during marriage will be equalised under Article 1:155 of the Dutch Civil Code when the marriage is dissolved through divorce. This law applies for all matrimonial systems – ie, both the statutory community of property regime and the marital contract system (prenuptial and postnuptial agreements). The standard division by law is 50/50. Spouses and registered partners can exclude the Equalisation of Pension Rights in the Event of Divorce Act by marital agreement/ partnership agreement or by divorce agreement/ termination of partnership agreement, so that – in the event of divorce and legal separation – no equalisation or set-off of rights to old-age pen - sion will be made. If a spouse or registered partner prematurely passes away, the widowed spouse or registered partner is entitled to a surviving spouse/partner pension. The same applies for divorcees or for -
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