Have you found the love of your life? And have you sealed your love by marrying each other? Be aware that your marriage may influence the ownership of your property. The same applies to a registered partnership.
However, you may still conclude with your partner that your marriage or registered partnership should not affect anything ownership-wise. In other words, there is a way out of this without jeopardizing your union in any way.
Marital community of property
If you marry without having made a nuptial agreement, a community of property may come into existence between you and your partner. This means that all or certain assets acquired by one of the partners during marriage are jointly owned, possibly with the exception of certain assets that are deemed to belong privately to one of the partners. This also pertains to debts. To determine which kind of community of property regime precisely applies, you will need to have ascertained which law applies to you.
If Dutch law applies to your marital property regime, for example, there exists a universal community of property between you if your marriage was solemnized prior to January 1st 2018. This means that, unless partners expressly agreed otherwise, all property, whether acquired before or after marriage, automatically became jointly owned by both partners.
If your marriage was solemnized after the aforementioned date, there is a limited community of property regime. Principally, only assets and debts acquired and contracted during the marriage are encapsulated by the community of property.
The only way to prevent a community of property from coming into existence is to sign a nuptial agreement prepared by a notary. This is usually done prior to the marriage (a prenuptial agreement). This is to ensure that solely one regime – namely the one included in the prenuptial agreement – applies to the partners involved as of the marriage date.
But what if this has not been concluded by the partners?
Dividing communal assets and debts
Many partners seem to erroneously think that only by reason of divorce a community of property regime ends and that a subsequent division of communal assets and debts takes place. This is false. It is namely also possible to conclude a nuptial agreement during the marriage (a postnuptial agreement).In a postnuptial agreement, partners may still opt to totally exclude a community of property. However, they may also state that a much more limited community of property should exist between them, which only encapsulates certain assets and debts. For example, they may conclude that only immovable assets and debts connected to these assets are to be a part of their marital community of property.
By concluding that there should be no community of property between them, the partners also have to divide their communal assets and debts. In principle, partners are each entitled to an equal share in the community of property. Consequently, communal assets and debts are allocated to the partners on a 50-50 basis.
However, partners may also conclude that division should take place in a different ratio. They are free to allocate a communal asset or debt in its entirety to just one of them. If this is indeed their desire, they should be advised that this unequal division may have tax consequences. An unequal division of the community may namely be viewed by the Dutch tax authorities as a gift, as a result of a which gift tax could be levied. It is, thus, of great importance that they are advised by the notary dealing with the creation of their postnuptial agreement and division of assets to prevent any unnecessary tax burdens from arising.
Contact us for expert legal advice.
In conclusion, it is sensible to leave matters relating to your marital property regime in safe hands. Contact us to discuss which changes concerning your community of property you would like to implement.
If a postnuptial agreement needs to be made, we may also determine which kind of division of your communal assets and debts would work best for you taxwise.
Unless stated otherwise, everything mentioned in this article in relation to a marriage also pertains to a registered partnership.
AUTHOR: Joep Ertem LL.M.
Deputy civil law notary at Westport Notarissen
Rotterdam
He can be contacted at:
Tel: +31(0) 6 82 05 77 80
E-mail: j.ertem@westportnotarissen.nl
