Opinion: The notary as director of the 'good' divorce

This article previously appeared in Advocatie

In this opinion piece, civil-law notary Geert Janssen (MAES Notaries) advocates for a legal role for civil-law notaries in mutually agreed-upon divorce proceedings. He believes this could lead to a more efficient, transparent, and less error-prone process. With a single point of contact and clear safeguards, the judge remains available in the event of a dispute, while unnecessary procedures, delays, and costs are avoided.

Recently, the Royal Dutch Notary Association (KNB), the professional association for civil-law notaries, took the initiative to advocate for civil-law notaries to be legally responsible for formalizing divorces when spouses separate amicably and oversee the entire divorce process. A sensible initiative that can only be a win-win situation. A divorce that proceeds amicably in the Netherlands is often still unnecessarily cumbersome. Partners agree, yet a formal process involving a lawyer and the court almost always follows.

More efficient and less prone to errors

The core of the idea is simple: one director, one file, one timeline. Instead of drafting agreements in one phase, formally submitting and concluding them in a second, and transferring assets in a third, the process can be consolidated. This is more efficient and less prone to errors. Many problems in "good" divorces arise not from disagreements but from poor coordination. Fewer transfers between professionals means less chance of misunderstandings and disputes. The notarial profession is designed to provide legal certainty in situations where parties voluntarily make agreements with significant consequences. The notary is independent, has a duty of information and care, and is accustomed to assessing whether the parties understand the consequences and whether the agreements are legally sound.

A common concern is whether this is simply a new revenue model for notaries. It doesn't have to be, and it's even plausible that clients could actually save money without the notary having to earn more. Notarial involvement is already necessary in many divorces, for example, in the transfer of a home, in the division of assets that must be recorded in a deed, or in business structures and prenuptial agreements. The "new" step is primarily formalizing the divorce itself. If this process is legally structured with standardized steps and registration, it can be relatively efficient. The notary then incurs comparable administrative costs – intake, checks, drafts, explanations – but the entire process is shortened because an extra procedural link is eliminated.

Advantages

This efficient effect is evident in various practical situations. Take owner-occupied housing. Several layers are always at play there: who will remain in the home, how will the equity or negative equity be divided, what happens to the mortgage, and how will ownership be legally transferred. In the current model, these issues often occur along separate tracks, making planning vulnerable. An integrated approach makes the order more logical: concluding agreements, arranging financing and transfer legally correct, and formalizing the separation.
For entrepreneurs, the advantage is primarily risk reduction. As soon as business assets, shares, certificates, sureties, or current account relationships are involved, the separation effectively constitutes a restructuring. Costs often arise not from the basic agreement, but from remedial work: an unclear valuation basis, a provision that is fiscally or legally unenforceable, or agreements that later lead to disputes.

Even in divorces involving children, the difference can be significant, precisely because parents crave predictability. Not every divorce involving children is complicated; parents often agree on the division of care and communication. But they do want an overview of when something is final and what steps still need to be taken with the municipality, benefits, insurance, school, and bank.

Finally, divorces often involve former spouses wanting to amend their wills. The most common request in a divorce is to exclude the ex-partner from the will. Although a divorce means the ex-partner can no longer claim the inheritance, the substance of an old will often remains valid.

Fast where possible, legal where necessary

It's crucial that a notarial route doesn't become a quick and easy option without a safety net. The distinction must remain clear: fast where possible, legal where necessary. As soon as there are signs of pressure, inequality, insecurity, or substantive conflict over children or money, the route to court should be open and easily accessible. A well-designed system should therefore include a set of procedural safeguards: assessment of voluntariness, opportunities for separate conversations, extra attention to comprehension and language proficiency, and a clear stop button with a referral if the notary doubts the balance or free will.

If these safeguards are in place, a two-track model will emerge that better reflects reality. The judicial route will remain the safety net and the forum for disputes. The notarial route will become the efficient route for the large group that agrees and primarily needs careful documentation and rapid completion. The benefit will not be "more work" for the notary, but a smarter system: less duplication, shorter waiting times, lower chain costs, and improved feasibility for clients.

By their very nature, the impartial and independent notary often acts as a dispute resolution agent and can be seen as a formal or informal mediator. In divorce cases, too, the notary can prevent many conflicts and, when disagreements arise, find a mutually agreed-upon solution.