Nkwekọrịta tupu alụmdi na nwunye na Netherlands: ihe ọ na-ekpuchi gbasara ịgba alụkwaghịm

A prenuptial agreement (huwelijkse voorwaarden) lets spouses depart from the statutory matrimonial property regime, which for marriages since 1 January 2018 is the limited community of property. It can settle how assets and debts are divided on divorce, but it cannot settle spousal maintenance in advance: under Article 1:400 of the Dutch Civil Code (BW) such a waiver is void.

Only a civil-law notary (notaris) can draw up the agreement, as a notarial deed, before or during the marriage. Because the default already keeps pre-marital onwunwe, gifts and inheritances private, the first question is whether you need one at all. It matters most where one spouse owns a business, where you bring very unequal assets or debts into the marriage, or where the marriage crosses a border. Those are also the cases in which the lack of an agreement is felt most on ịgba alụkwaghịm.

What happens without a prenuptial agreement?

Without an agreement, the statutory regime applies, and which one depends on the date of the marriage. Marriages from 1 January 2018 fall under the limited community of property; older marriages under the general community of property.

Under the limited community (beperkte gemeenschap van goederen), three categories stay outside by law: what each spouse owned before the marriage, gifts and inheritances. What is acquired and the debts incurred during the marriage fall into the community and are divided in equal halves when it ends (Article 1:100 BW). Our page on nkewa ihe onwunwe na-akọwa ngụkọ ahụ.

Marriages concluded before 1 January 2018 remain under the general community of property (algehele gemeenschap van goederen), unless the spouses changed it. Everything each spouse owned and owed, including pre-marital assets, merged into one estate on the wedding day. For many Dutch couples that is still the position.

One practical point is often missed. Where the origin of an asset cannot be proven, it is treated as part of the community. An inventory of what each of you brings in is therefore valuable whether or not you sign an agreement.

What can a prenuptial agreement arrange?

You are largely free to design your own regime, as long as it does not conflict with mandatory law, public order or good morals (Article 1:121 BW). The three common models are full exclusion, a limited or tailored community, and exclusion with a settlement clause.

• Exclusion of all community (koude uitsluiting): each spouse keeps their own assets and debts, and nothing is shared or settled on divorce.
• Tailored community: for example, everything stays separate except the marital home and its contents, which you deliberately make joint.
• Exclusion with a periodic settlement clause (periodiek verrekenbeding): assets stay separate, but each year you share the income left over that has not been spent.
• Exclusion with a final settlement clause (finaal verrekenbeding): on divorce you divide the assets as if you had been married in community, often with exceptions such as a business.

A periodic settlement clause has a well-known trap. If you never actually settled the surplus income during the marriage, Article 1:141(3) BW presumes that the assets present on divorce were built from income that should have been shared. The wealthier spouse may then have to pay out half of what was built up during the marriage, which is often the opposite of what the clause was meant to achieve.

How is a business or an inheritance treated?

A business owned before a post-2018 marriage stays with the owning spouse even without an agreement. The disputes arise over the growth in value during the marriage and the labour and money from the community that went into it.

An agreement can state that the business, its future profits and any reserves remain private, and whether the other spouse is entitled to compensation for growth in value. For entrepreneurs this is usually the main reason to sign one; our page on iwu azụmaahịa ezinụlọ covers the wider picture.

Gifts and inheritances already stay private under the limited community. The risk lies in mixing: if you put an inheritance into the jointly owned marital home, you need proof and a clear clause to keep a claim for that contribution. When you are ịzụrụ ụlọ ọnụ, record who paid what.

Which formalities apply?

The agreement must be a notarial deed signed by both spouses in the presence of the notary. It is valid between you from signing, but you can rely on it against third parties such as creditors only once it is entered in the matrimonial property register (huwelijksgoederenregister) (Article 1:116 BW).

The notary is impartial and must explain the deed and its consequences to both of you. A notary who fails in that duty can face disciplinary measures and liability for the loss that follows. Each of you may also take your own advice; that is not required, but it makes the agreement harder to attack later.

You can change the agreement during the marriage by a new notarial deed. Court approval is no longer required for a change during the marriage; that requirement was abolished on 1 January 2012. Creditors whose position is harmed by a change can still challenge it. Whether a change has gift tax consequences is a question for a tax adviser.

Anyone can check whether a couple has a prenuptial agreement by searching the register; the Ọchịchị Dutch na-akọwa otú.

Can a prenuptial agreement settle maintenance and pension?

No for maintenance, and only partly for pension. Maintenance is a statutory duty assessed at the time of divorce, and pension rights follow their own Act.

Under Article 1:400 BW, any agreement by which a person gives up a statutory right to maintenance in advance is void. A nlekọta di na nwunye clause in huwelijkse voorwaarden will therefore not hold, even if it was valid in the country where it was signed. The moment to agree on maintenance is the divorce itself, in the divorce settlement (echtscheidingsconvenant). Child maintenance and parental responsibility can never be fixed in advance either.

For divorce petitions filed on or after 1 January 2020, spousal maintenance runs for half the length of the marriage, with a maximum of five years. Longer periods apply where the youngest child is under twelve, and in certain long marriages where the recipient is close to state pension age or was born on or before 1 January 1970.

Pension rights built up during the marriage are divided under the Pension Rights Equalisation Act (Wet verevening pensioenrechten bij scheiding), whatever the property regime: in principle each spouse receives half of the old-age pension the other built up during the marriage. You may depart from this in the prenuptial agreement, but only explicitly. A general exclusion of community does not exclude pension equalisation. See our guide on ego ezumike nka na ịgba alụkwaghịm.

Which law applies in a cross-border marriage?

That depends on the date of the marriage. For marriages from 29 January 2019, Regulation (EU) 2016/1103 applies; for marriages between 1 September 1992 and 28 January 2019, the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes.

Under the Regulation, spouses may choose the law of a state where either of them is habitually resident or of which either is a national. The choice must be in writing, dated and signed by both. Without a choice, the law of the first common habitual residence after the marriage applies, failing that the common nationality, and failing that the state with the closest connection. Your property may therefore be divided under foreign law even if you divorce in the Netherlands; see our page on ịgba alụkwaghịm mba ụwa.

A Dutch court will generally give effect to a prenuptial agreement made abroad if the rules that applied when it was made were observed. Clauses that conflict with Dutch public policy, such as a maintenance waiver, are not applied. For couples who are not married, see our article on relationships with a partner from abroad.

What should you check as the spouse with the business or larger assets?

You usually have most to protect, and also most to lose from a clause that is not followed in practice.

• Is it clear in the deed whether the business, its growth in value and its reserves stay private?
• Is there an inventory of your assets and debts on the wedding day, kept with the notary?
• If there is a periodic settlement clause, do you actually settle the surplus income every year?
• Has the pension equalisation been addressed explicitly, if you want to depart from it?
• Does a choice of law in the deed meet the formal rules of Regulation 2016/1103?

What should you check as the spouse with fewer assets?

You give up a share you would otherwise have had, so check what you receive in return before you sign.

• Do you understand what you would receive under the statutory regime, and what you receive under this deed?
• Is there a final settlement clause or compensation if you reduce your working hours for the family?
• Who owns the marital home, and how are your contributions to it recorded?
• Have you had enough time, and if needed your own adviser, before signing at the notary?
• Does the deed contain a maintenance waiver? Such a clause is void under Article 1:400 BW.

What can we do for you with a prenuptial agreement?

The notary draws up the deed; on our ọkàiwu ịgba alụkwaghịm page we explain how we act for you when the agreement is tested on divorce.

• We review the draft deed for you before you sign it at the notary.
• We explain how a settlement clause will work out on divorce, with a calculation based on your figures.
• We assess which law governs your matrimonial property in a cross-border marriage.
• On divorce, we calculate what is owed under an unexecuted settlement clause (Article 1:141 BW).
• We negotiate maintenance and the division of assets in the divorce settlement.

Summary

• Since 1 January 2018 the default is the limited community: pre-marital assets, gifts and inheritances stay private.
• A prenuptial agreement is a notarial deed; registration makes it effective against creditors (Article 1:116 BW).
• Maintenance cannot be waived in advance (Article 1:400 BW); pension equalisation can be excluded only explicitly.
• An unexecuted periodic settlement clause can lead to sharing half of what was built up (Article 1:141 BW).
• In cross-border marriages, the date of marriage decides whether Regulation 2016/1103 or the 1978 Hague Convention applies.

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