Planning to get married? First, visit a notary.

If we get married now, wouldn't we just get married with a prenuptial agreement by default? Wouldn't a visit to a notary be necessary then?

Visit the notary on time

Beware! As of January 1, 2018, the law has changed. If you get married and don't make any arrangements, you will no longer automatically have a full community of property, but a limited one.

This means that, starting January 1, 2018, any private assets you have at the time of your marriage will remain outside the community of property. Contrary to popular belief, the new marriage rules do not automatically mean that spouses who fall under the new regime will be married under a prenuptial agreement.

For prenuptial agreements, which can be a useful arrangement – especially for entrepreneurs – a visit to a notary before the wedding remains necessary. It can save you a lot of money.

Community of property

If the spouses do not draw up a prenuptial agreement before marrying, a so-called community of property arises between them.

Before January 1, 2018, this was a full community of property. Since the change in the law, a limited community of property has been established. Note: this only applies to communities established after January 1, 2018. This article briefly discusses the key differences between the old and new systems.

The old general community of property (until January 1, 2018)

Before January 1, 2018, our basic system was the full community of property. This means that everything the spouses owned at the time of marriage and everything they acquire during the marriage becomes community property and is jointly owned (each in half). All debts (!)—such as student loans—also become jointly owned. This automatic merging of the spouses' assets through marriage is also called community property.

This system of estate mixing had several legal exceptions. One of the most important exceptions was the so-called exclusion or private clause. This clause is often seen in inheritances when the deceased does not want their inheritance to go to the in-laws (the "cold side"). The assets/debts acquired under this clause did not fall within the general community of property.

Exclusion clause or private clause

You can stipulate in a will or when making a gift that the recipient's inheritance or gift remains private. This is called an exclusion or private clause. This clause ensures that the inheritance or gift does not fall within the marital community of property to which the recipient is married.

The great advantage of the old general community of property system was its simplicity. Keeping records was unnecessary: everything, with a few exceptions, was shared. The downside: in the event of a divorce, everything had to be shared, and even in the event of financial problems, the entire joint estate could be recourse to creditors. These problems can be avoided by drawing up a prenuptial agreement with a notary before or during the marriage.

The new limited community of property

As of January 1, 2018, the community of property will be more limited in size. Assets that each partner owned before their marriage (also known as marital assets), as well as inheritances and gifts, will no longer automatically be included in the new community of property.

The community of property does include assets that the spouses acquired together before their marriage or debts that they incurred together before their marriage, for example, the joint home and the jointly incurred mortgage debt for it.

Example: Before their marriage, Piet and Elly jointly owned a house, with a 40%-60% split, because Elly contributed more of her own money than Piet. When Piet and Elly marry, this ownership ratio automatically becomes 50%-50%, because the house becomes part of the (limited) community of property! If Piet and Elly want to maintain this 40%-60% pre-marriage ratio, they must therefore draw up a prenuptial agreement with a notary before the marriage!

Furthermore, the new community of property includes everything the spouses acquire during the marriage, as well as debts incurred by one or both spouses during the marriage. An exception exists for inheritances and gifts, and the related debts. These are automatically excluded from the new community of property, unless the deceased or donor specifically stipulates that they may be included in the community of property (the so-called inclusion clause). Despite this new system, the exclusion or personal clause described above in the will or gift remains important. Spouses can agree in their prenuptial agreement that inheritances or gifts will nevertheless be included in the community of property and thus become jointly owned by both spouses. If a testator or donor absolutely refuses this, they can include the exclusion clause described above in their will or gift. Such a clause takes precedence over the arrangement the spouses agree upon in the prenuptial agreement! For the gift and will practice, to ensure that gifts and inheritances received do not become part of the community, the inclusion of an exclusion clause remains important even after January 1, 2018.

Tip

Consult a civil-law notary regarding marital property law, particularly regarding whether your (intended) marriage is properly arranged with community property (old or new style) or with a prenuptial agreement. If one or both of you own a business, own a home (especially if a substantial gift was received for the property), or have expensive possessions for which the purchase price was not paid 50/50, then a visit to a civil-law notary is highly recommended.

Come by or call us. The consultation is free. To schedule an in-office consultation or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.







This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.