The Supreme Court has ruled: orders to sell a home can now also be enforced in summary proceedings

This blog discusses the Supreme Court ruling of 31 March 2023, in which the Supreme Court ruled that it is now possible to request an order for cooperation in the sale of a home in summary proceedings.

Background information

During a divorce, the sale of the joint home is often a point of contention. As long as the home is jointly owned, both parties are often jointly and severally liable for the mortgage. It is then usually not possible to take out a second mortgage for a new home. One partner wants the home to be sold as soon as possible, the other partner wants to postpone the sale because he/she lives in the home or wants to take it over.

Substantive proceedings

If there is a dispute about the joint home, it can be submitted to the court. If parties separate and one of them wants to enforce the sale of the home, this must in principle be done in a substantive procedure. A substantive procedure often takes a long time and involves a lot of costs.

Summary proceedings

Sometimes a quick decision by the judge is therefore desirable. Summary proceedings are a fast procedure that is intended to give a decision in the short term. Conducting summary proceedings can be advantageous, because you will know within a few weeks where you stand.

To date, case law has ruled differently on the question of whether an order to cooperate in the sale of the home is possible in summary proceedings. For example, the Court of The Hague ruled in 2018 that summary proceedings serve to take disciplinary measures and summary proceedings do not lend themselves to the judge ordering a method of distribution. According to the court, it is therefore not up to the summary proceedings judge to put a definitive end to the distribution in the context of an disciplinary measure. This means that enforcing a sale is not possible in summary proceedings.

However, a different view has recently emerged from the judiciary. For example, the Arnhem-Leeuwen Court of Appeal ruled in 2021 that a conviction to cooperate in the sale of a home in summary proceedings is possible. The court ruled that the interim relief judge had not put a definitive end to the division of the home and therefore did not see the conviction to cooperate in the sale of the home as establishing the division. Legally speaking, there are still division acts necessary, including going to the notary.

In short, there has been no clear answer to the question of whether cooperation in summary proceedings is possible until now.

Supreme Court

The Supreme Court ruled on March 31, 2023; from now on, it is possible to be sentenced to cooperate in the sale of a house in summary proceedings.

This ruling concerned two parties who had lived together and jointly owned a home. The man had summoned the woman to appear in summary proceedings to obtain a judgment to cooperate in the sale and delivery of the home. The judge in summary proceedings had sentenced the woman to do so. The woman then appealed. The court ruled that it was not up to the judge in summary proceedings to rule on this issue. According to the court, the decision to unconditionally and irrevocably cooperate in the sale is only possible in substantive proceedings and not in summary proceedings.

Cassation in the interest of the law

Advocate General Snijders filed an appeal in cassation in the interest of the law on 25 January 2023. In an appeal in the interest of the law, the Supreme Court (the highest court) provides an explanation of a specific legal question that is important for the unity of the law and legal development. When the Supreme Court makes a decision on this, there will be clarity for future cases. The Advocate General stated that a conviction for cooperation in the sale of a home is possible in summary proceedings.

Consideration of the Supreme Court

The Supreme Court agreed with the conclusion of the Advocate General. In this regard, the Supreme Court considered the following; “the court may, in summary proceedings at the request of a co-owner, issue a judgment against another co-owner to cooperate in the sale and delivery of a property belonging to a community to a third party.” The fact that the sale of a property belonging to a community in order to divide the proceeds is a method of division as referred to in Article 3:185 of the Dutch Civil Code does not prevent a judgment to do so being issued by way of interim relief in summary proceedings. Given the provisional nature of a decision in summary proceedings, this does not – contrary to what the court considered – put a definitive end to the division.”

According to the Supreme Court, the court's judgment therefore does not serve the interests of the law and has therefore been quashed.

Conclusion

Following the Supreme Court ruling of 31 March 2003, it is now possible to divide the joint home in summary proceedings. The advantage of this is that one of the parties can enforce a quick sale of the home. This does not require substantive proceedings.