Planning to get married? Read this first!
By means of Eelco Anink
On 28 March, the Senate approved the bill to limit the scope of the statutory community of property before marriage. The law will enter into force on 1 January 2018.
If you marry on or after 1 January 2018 and do not enter into a prenuptial agreement, the marital community of property is considerably limited compared to the statutory community of property that applied until 1 January 2018. As of 1 January 2018, it will no longer apply that in principle everything falls within the community of property, but the goods and debts that the spouses had before the marriage will not fall within the community, unless they were already common when the community of property was created, such as a joint home. A spouse who states that there is private property does have the burden of proof of this, otherwise the assets are presumed to belong to the marital community.
Inheritances or gifts also no longer fall within the limited community of property, unless the testator/donor has imposed an inclusion clause. If the spouses do not consider this desirable, they can deviate from it by means of a prenuptial agreement. This takes precedence over the will of the testator/donor. The will of the spouses therefore overrules the will of the testator/donor in this matter. Incidentally, the testator/donor can choose a different route by letting the inheritance/gift go to both spouses.
If a spouse uses his knowledge, skills and labour during the marriage to make efforts for assets that do not belong to the community, the result of these efforts must benefit the community. In that case, a right to compensation arises in favour of the matrimonial community. The extent depends on the circumstances. If one of the spouses already has a BV before the marriage, the shares do not fall into the community. However, the increase in value since the marriage as a result of the labour efforts of the company must be compensated to the community. The rationale behind this arrangement is that the spouses share the fruits of labour efforts during the marriage. We foresee considerable implementation problems with this provision.
The position of private creditors is restricted. The right to recover a debt not belonging to the community from community property is restricted to half of the proceeds of the recovered property. The other half goes to the other spouse and henceforth falls outside the community. If a creditor seeks recovery from a community property for a debt not belonging to the community, the other spouse can also choose to take over that property from his or her own assets for half of the value of that property. From that moment on, this is a personal property of this spouse and therefore no longer falls within the community.
The (new) regime described above does not apply to matrimonial communities that existed before the law entered into force on 1 January 2018. This means, for example, that if spouses were married in community of property before the law entered into force, gifts or inheritances received afterwards will fall into the community unless an exclusion clause applies. For the sake of legal certainty, a broad transitional law has been chosen. After its entry into force, the bill will only apply to matrimonial communities that arise afterwards. This means that two legal systems will continue to exist side by side for a long time to come. Spouses who wish to create a full community of property on or after 1 January 2018, which also includes the goods and debts of the spouses from before the marriage, can achieve this by drawing up prenuptial agreements.
Make sure you are well informed if you intend to get married soon. The lawyers of De Boorder can provide you with excellent advice and, by asking the right questions, help you decide what is best for you and your future spouse, now and in the future.
