Will I get back the money given to me or bequeathed to me during the marriage in the event of a divorce?
By means of Eelco Anink
If the parties are married in full community of property, it is possible that during the marriage one or the other spouse received a gift or inheritance whereby the donor or testator stipulated that it would not fall into the community of property. This is called an exclusion clause. The assets obtained under the exclusion clause (inheritances or gifts) are often the subject of discussion in the context of a divorce.
If the 'excluded' gift or inheritance is deposited into a joint account, will that spouse get his or her money back as part of the divorce?
If assets acquired under the exclusion clause are deposited in a joint account and it cannot be demonstrated that the money has benefited the private assets of the heir or beneficiary, the beneficiary will in principle have a right to compensation from the community. This is in line with the purport of the exclusion clause. After all, the testator or donor will aim to protect the assets in question in the event of divorce. This doctrine is often followed in case law (see, for example, the Arnhem-Leeuwarden Court of Appeal, The Hague Court of Appeal). According to this case law, it is therefore not considered what the money was used for.
The Court of 's-Hertogenbosch is, however, of the opinion that the expenditure of the assets does affect the extent of the right to compensation. The use of assets obtained under an exclusion clause for example for a luxury holiday, which could not have been taken without that acquisition, is then spent voluntarily. According to the Court of 's-Hertogenbosch, this must then be seen as a gift, as a result of which a right to compensation is no longer appropriate (the 'as long as it lasts' doctrine). A right to compensation is therefore (according to the Court of 's-Hertogenbosch) not self-evident when the spouses incur additional expenses due to an inheritance or gift, which they would otherwise not have incurred if they had not had this money.
More recently, the Court of 's-Hertogenbosch ruled on 7 November 2017 (ECLI:NL:GHSHE:2017:4752) that the fact that:
1. the donated money had ended up in a joint account of the parties;
2. was no longer traceably present; and
3. nor had it been established to which specific expenditure it had been spent;
it had to be assumed that the funds received with exclusion had been consumed and thus spent on expenses that did not give rise to a right to compensation. The court added that it had not yet been proven that this would be different. The Court of 's-Hertogenbosch thus deviates from the rulings of most courts and tribunals.
So it matters where in the country this subject is litigated. Until the Supreme Court is asked to rule on this, there will be two 'doctrines'.
There is much more to say about this topic and the strategy to choose in the event of a divorce. The lawyers of De Boorder can give you excellent advice on this.
