Promotion: Shifting assets within marriage

Compensation in Dutch matrimonial property law—that's the subject of Jan Hein Lieber's doctoral research. He sought and found a general rule that can be applied to all compensation, even those not stipulated in the law. "If assets are transferred from one spouse to the other, there is a right to compensation, unless there is a good reason for the transfer."

Why did you want to research this topic?
The rules for the statutory community of property were revised in 2018. Before that, people married with a full community of property. After 2018, that community of property was limited, and spouses also acquired larger separate assets. I tried to find a basic rule for shifts between separate assets or separate assets and the community of property. For example, when one spouse finances a renovation for the other, partially pays off the mortgage, or buys a car. Does a right to compensation arise in that case? It was a specific and topical question that I wanted to write a book about. And I enjoyed combining it with a doctoral thesis.

What was the outcome of your research?
In short: if assets shift from one spouse to the other, a right to compensation arises. Unless there's a good reason for it, for example, because the spouses have made different agreements. For example, partially paying off the mortgage was a gift from one spouse to the other. It can also be contrary to reasonableness and fairness to still have to pay compensation. Consider, for example, a renovation that took place twenty years ago or a car that's already depreciated.

How did you do your research?
Based on literature and case law. I didn't visit notaries to interview them; that would have taken too much time. And I limited myself to married people.

Did the results surprise you?
Not really. What I already suspected about compensation has been further reinforced. However, I have discovered that the new rule in Article 87 of Book 1 of the Dutch Civil Code in this regard wasn't really necessary. It has become clearer, however, that the law of evidence plays an important and often decisive role in compensation proceedings. The spouse claiming compensation must explain that there has been a transfer of assets. This can be done, for example, by showing invoices for items they paid for. This gives them a strong position to obtain compensation. The other spouse must then demonstrate that there was a justification for this transfer of assets, such as a gift.

Is further research needed?
"Research into how things are arranged in informal communities would be great. And how it's arranged in other countries and what we can learn from them. I'd rather leave that to someone else. At over 400 pages, the book is already quite thick."

Want to know more or read the summary of the research?
Visit the University of Groningen portal (RUG.nl) . The book will also be available from Wolters/Kluwer publishers starting July 22nd.