Dutch Civil Code

Book 1 Law of Persons and Family Law

Title 1.7 Marital community of property*)

*) As of 1 January 2012 a new marital property law entered into force. Marital communities of property that came into existence prior to 1 January 2012 remain subject to the old marital property law [ the old statutory provisions can be found here].

Section 1.7.1 General provisions

Article 1:93 Derogation by nuptial agreement
It is possible to derogate by nuptial agreement, either explicitly or by the nature of the stipulations (clauses) therein, from the provisions of the present Title (Title 1.7), except to the extent that these provisions explicitly or by their nature oppose to such a derogation.

Article 1:94 Marital community of property
- 1. By operation of law a marital community of property shall come into existence between the spouses from the moment of the contracting of the marriage.
- 2. The marital community of property encloses, as far as it concerns its assets, all assets of the spouses that are present at the start of the marital community of property and, as long as the marital community of property has not been dissolved, that are acquired afterwards, except:
a. assets with regard to which the testator in his last will or the donor at the donation has determined that they do not fall into the marital community of property;
b. pension entitlements to which the Act on the Equalisation of Pension Entitlements at a Separation applies, as well as pension rights for surviving relatives (dependants) that relate to such pension entitlements;
c. rights for establishing a usufruct as referred to in Articles 29 and 30 of Book 4, a usufruct that has been established by virtue of the before mentioned statutory provisions, and what is acquired pursuant to Article 34 of Book 4.
- 3. Assets and debts (liabilities) which in a particular way are attached to one of the spouses personally, only fall into the marital community of property as far as such attachment does not oppose to this.
- 4. Benefits (fruits) derived from assets which do not belong to the marital community of property, do not fall into that community either. What is collected on a claim which does not belong to the marital community of property, stays outside that community; the same applies to a claim for compensation that replaces one of the own assets of a spouse, including a claim in regard of a decrease in value of such asset.
- 5. The marital community of property encloses, as far as it concerns its liabilities, all debts (liabilities) of each of the spouses, with the exception of debts (liabilities):
a. regarding assets that do not belong to the marital community of property;
d. arisen from donations, contractual stipulations (clauses) or conversions made or entered into by one of the spouses as referred to in Article 4:126 paragraph 1 and, 2 under (a) end (c).
- 6. Where the spouses are in dispute on the point to whom of them an asset belongs, and neither of them is able to prove his entitlement, that asset is considered to be an asset of the marital community of property. This legal presumption, however, has no effect to the detriment of the creditors of the spouses.

Article 1:95 Compensations between properties: acquisition of assets
- 1. An asset that a spouse has acquired for a consideration (i.e. other than gratuitously), remains outside the marital community of property if at the acquisition more than one half of the counter performance [for acquiring that asset] has come at the expense of that spouse’s own property. To the extent that the counter performance has come at the expense of the marital community of property, the spouse is liable for compensation towards that marital community of property. The size (amount) of that compensation is to be determined in accordance with Article 1:87, paragraph 2 and 3.
- 2. If an asset is going to belong to the marital community of property and a spouse has, at the moment of acquisition of that asset, contributed from his own property to the counter performance, then that spouse has a claim for compensation of which the size (amount) is to be determined in accordance with Article 1:87, paragraph 2 and 3.

Article 1:96 Compensation between properties: satisfying debts
- 1. In order to collect a debt of a spouse, regardless whether that debt has fallen into the marital community of property or not, both, the assets of the marital community of property and the personal assets of this spouse, may be sold off by the creditor.
- 2. In order to collect a debt of a spouse that has not fallen into the marital community of property, the assets of the marital community of property cannot be sold off by the creditor when the other spouse points out personal assets of the first mentioned spouse that provide sufficient recourse for him.
- 3. A spouse from whose own assets a debt of the marital community of property has been satisfied, is because of that entitled to be compensated from the assets of the marital community of property. Where it concerns a debt related to an asset that belongs to the marital community of property, the size (amount) of that compensation is to be determined in accordance with Article 1:87, paragraph 2 and 3.
- 4. A spouse whose debt, which did not fall into the marital community of property, has been satisfied from assets of that marital community of property, is because of that liable for compensation towards the marital community of property. Where it concerns a debt related to one of the assets belonging to his own property, the size (amount) of that compensation is to be determined in accordance with Article 1:87, paragraph 2 and 3.
- 5. A spouse who indicates towards a creditor that an asset, which the creditor wants to sell off in order to collect his claim, does not belong to the marital community of property, bears the burden of proof in regard of such statement.


Article 1:96a Compensation between properties: payment of sum insurance premiums
If a spouse, by appointing someone as beneficiary of a capital sum insurance which is to be paid out at the death of that spouse, has made a donation to a third person and the premiums for that insurance policy have come at the expense of the marital community of property, then this spouse is, because of that, liable for compensation towards the marital community of property. The size (amount) of that compensation amounts to a part of the value of the insurance payment (death benefit), equivalent to the portion of the insurance premiums coming from the marital community of property.

Article 1:96b Size (amount) of the compensation fixed by agreement between the spouses
By agreement the spouses may determine the size (amount) of the compensation referred to in Articles 1:95, 1:95 and 1:96a otherwise. Article 1:87, paragraph 4, then applies accordingly. Where the compensation cannot be determined accurately, it shall be estimated.

Section 1.7.2 Management (administration) of the marital community of property*)

*) As of 1 January 2012 a new marital property law entered into force. Marital communities of property that came into existence prior to 1 January 2012 remain subject to the old marital property law [ the old statutory provisions can be found here].

Article 1:97 Right of management (administration)
- 1. An asset registered in the name of a spouse and an asset that he has acquired due to a succession by inheritance, a bequest, a testamentary disposition under a condition or a donation, falls under his management (administration) exclusively. Otherwise each spouse is entitled to manage (administer) the assets of the marital community of property. Article 3:170, paragraph 1, applies accordingly.
- 2. When an asset of the marital community of property, with the approval of the spouse under whose management (administration) it exclusively or also remained, has been made subservient to the professional practice or business of the other spouse, then the management (administration) of that asset shall be exercised exclusively by this other spouse as far as it concerns acts performed in the normal course of his professional practice or business and, for the rest, by both spouses jointly. When an approval is granted, it will last for the entire duration of the professional practice or business, unless the spouses have agreed differently, yet the District Court may at all times end the subservience for well-substantiated reasons upon the request of one of the spouses.
- 3. Disputes between the spouses in respect of the management (administration) of an asset which belongs to the marital community of property, may, upon the request of the spouses or one of them, be brought to the District Court.

Article 1:98 [repealed on 1 January 2012]

Section 1.7.3 Dissolution of the marital community of property*)

*) As of 1 January 2012 a new marital property law entered into force. Marital communities of property that came into existence prior to 1 January 2012 remain subject to the old marital property law [ the old statutory provisions can be found here].

Article 1:99 Grounds for dissolution of the marital community of property
- 1. The marital community of property dissolves by operation of law:
a. in the event that the marriage or registered partnership ends due to the death of one of the spouses or registered partners: at the moment of his death;
b. in the event that the marriage or registered partnership, respectively, ends due to a divorce of the marriage or the dissolution of the registered partnership by the court: at the moment on which the divorce petition, respectively, the request for the dissolution of the registered partnership has been filed with the court;
c. in the event of a legal separation: at the moment on which the request for such a legal separation has been filed with the court;
d. in the event of the termination (disestablishment) of the marital community of property by court order: at the moment on which the request for the termination (disestablishment) has been filed with the court;
e. in the event of the termination of the registered partnership by mutual consent: at the moment on which the agreement for the termination of the registered partnership has been entered into (concluded) between the registered partners;
f. in the event that a spouse or registered partner has gone missing and the other spouse or registered partner, respectively, remarries or enters into a registered partnership: at the moment on which the court order referred to in Article 1:417, paragraph 1, has become final and binding;
h. in the event of a termination of the marital community of property by a later made up nuptial agreement: at the moment referred to in Article 1:120, paragraph 1.
- 2. A dissolution of the marital community of property by filing a petition or request as meant in paragraph 1, under (b), (c) and (d) as well as by entering into an agreement as meant in paragraph 1, under (e), can only be invoked against third persons who were unaware thereof if the involved petition or request or the relevant agreement was registered in the public Marital Property Register referred to in Article 1:116.
- 3. When it has been established that a petition or request as meant in paragraph 1, under (b), (c) and (d) or an agreement as meant in paragraph 1, under (e), can no longer result in divorce, dissolution of the registered partnership, legal separation, termination (disestablishment) of the marital community of property by court order or termination of the registered partnership by mutual consent, respectively, all effects of the marital community of property shall revive by operation of law as if no petition or request had been filed or no agreement had been entered into, unless another ground for dissolution has arisen in the meantime. Nonetheless, the legal validity of juridical acts performed between the moment on which the petition or request was filed or the agreement was entered into and the moment on which it was established that the petition or request or the agreement no longer can result in the legal consequences meant in the first sentence, has to be determined at the moment that the juridical act was performed.
- 4. Together with the petition or request meant in paragraph 1, under (b), (c) or (d), a legal claim may be filed already in accordance with Title 3.7 of the Dutch Civil Code for an injunction against the defendant to divide the marital community of property [Article 3:187 DCC), for an order to determine the manner in which the division must take place [Article 3:185 DCC) or for an order through which the division of the marital community of property itself is established [Article 3:185 DCC].

Article 1:100 Division of a dissolved marital community of property and the rights of recourse of creditors
- 1. Both spouses have an equal share in the dissolved marital community of property, unless they have agreed differently by means of a nuptial agreement or by means of a written agreement between the spouses, entered into in anticipation of the dissolution of their marital community of property for another reason than the death of one of the spouses or the termination of a nuptial agreement.
- 2. Creditors who could recover their claim from the marital community of property at the moment of its dissolution, remain entitled to take recourse on the marital community of property as long as it has not been divided and apportioned.

Article 1:101 Pre-emptive right to claim the apportionment of specific assets
After the dissolution of the marital community of property each spouse has the right to take over, for the estimated price, the clothes and gems and other small objects intended for his personal use as well as assets he uses in the course of his profession or business and documents and mementoes of his family.

Article 1:102 Liability for community debts*)
After the dissolution of the marital community of property each of the spouses remains liable in full for the community debts for which he was liable before. For other community debts he shall be liable joint and several with the other spouse, on the understanding that the creditor in his relation to the other spouse may only sell off, in order to collect such debt, what that other spouse has acquired on account of the division and apportionment of the marital community of property, without prejudice to Articles 3:190, paragraph 1, and 3:191, paragraph 1. The right of action for the collection of the debt meant in the second sentence becomes prescribed at the same time as the right of action becomes prescribed against the spouse against whom the debt mentioned in that sentence has come into existence.

*) In Dutch marital property law, when there exists a marital community of property during the marriage, a distinction has to be made, as far as it concerns debts that fall into that community, between the liable spouse, being the one that is the debtor of his creditor, and the other spouse, who is not a liable debtor himself, but who nevertheless has to accept on account of mandatory law that the creditor of the liable debtor-spouse, thus of one with whom he is married, may recover his claim from all community assets, and therefore as well from his share (half) in the entire marital community of property, thus all community assets belonging thereto. Although the other spouse has to accept during the continuation of the marital community of property that such a recourse may be taken against him, that is to say against all community assets, he has not become, as a result thereof, a debtor who himself is liable against the creditor. Only the spouse who has entered into the obligation is liable for the debt resulting from it. Not the other spouse. This changes, provided that the debt can be qualified as a community debt, after the dissolution of the marital community of property. The spouse who was liable as a debtor before the dissolution remains fully liable for that debt afterwards. The other spouse, who was not liable for that debt, and therefore not a debtor of the creditor during the existence of the marital community (although he had to tolerate that all community assets could be sold off by the creditor), now becomes liable for the first time for the entire community debt, and therefore becomes a joint and several debtor towards that creditor. The creditor, however, can only recover his claim against him from the assets that after the division of the community assets have been apportioned to him. Not from any other property. This provision guarantees that the creditor has the same possibilities for recovering his claim from the community assets prior to and after the dissolution of the marital community of property.
It is conceivable that during the existence of the marital community of property both spouses have entered as debtor into a debt which is regarded by law as a community debt, for instance by operation of law when it concerns debts entered into on behalf of the household as referred to in Article 1:85 DCC or by agreement, for instance when both spouses have signed a mortgage loan in their capacity as debtors for the acquisition of a house falling into the marital community of property. In that case both spouses are joint and several liable during the existence of the marital community of property for that community debt and they remain, after the dissolution of that community, joint and several liable for that debt. Such creditor may recover his claim after the dissolution from all the (personal) property of eacht of the spouses.
When a debt is entered into by one of the spouses during the existence of a marital community of property, but it does not fall into that community (which implies that there exists a limited community of property and, besides that, two personal properties of the spouses), the creditor of the liable spouse is only allowed to recover his claim from the personal property of his debtor and from the latter’s share in the limited marital community of property. The creditor may, I such event, demand the dissolution of the limited marital community of property, so that he is able to recover his claim after the apportionment of one half of the former community to his debtor, from what his debtor already personally owned and also from what the latter has acquired due to that apportionment and tat now forms his personal property as well. Neither during the existence of the limited marital community of property nor after its dissolution the creditor has a possibility to take recourse against the other spouse, who has never been his debtor and who will neither become his debtor, nor in full or in part, after the dissolution of the limited marital community of property.
Of course it’s possible as well that, during the time that there exists a limited marital community of property between the spouses, a debt is entered into by one of them, which falls into that limited marital community of property. The position of the creditor is in such event the same as in the case of the earlier described community debt, since also such debt is a community debt, even though it does not fall into a universal, but into a limited marital community of property. This means that the creditor can recover his claim from the personal property of the liable spouse with whom he entered into the debt and also from all assets belonging to the limited marital community of property, without the necessity to demand the division and apportionment of the community assets. After the dissolution of the limited marital community of property, the other spouse becomes joint and several liable for this community debt, but the creditor can only recover his claim towards him from the assets that have been apportioned to him after the dissolution of the limited marital community of property. The creditor is never allowed to sell off any personal property of the other spouse, neither during the existence of the limited marital community of property, nor after its dissolution (except for the former community assets that have become the other spouse's personal property after the dissolution and apportionment).

Article 1:103 Renouncement of the marital community of property
- 1. Each spouse has the right to renounce the marital community of property; any arrangement in derogation from this provision in a nuptial agreement or any other contract is null and void.
- 2. The part of the marital community of property that has been renounced, accumulates to the part of the other spouse.
- 3. The spouse making the renunciation, cannot claim anything from the marital community of property other than his bed and matching bedding and the clothes he needs for personal use. He may take over documents and mementoes of his family for the estimated price.
- 4. By making a renunciation the spouse is released from his liability for debts of the marital community of property for which he was not liable as a party prior to the dissolution of the marital community of property; he is also released from his obligation towards the other spouse to contribute to such debts.
- 5. He remains liable for debts of the marital community of property for which he was liable as a party prior to the dissolution of the marital community of property. If he has performed more than one-half of a debt for which each of the spouses was fully joint and several liable prior to the dissolution of the marital community of property, then he may take recourse against the other spouse to the extent that he has performed more than one-half of this debt.
- 6. If the other spouse has performed, in full or in part, a debt of the marital community of property for which he was not liable as a party prior to the dissolution of the marital community of property, then he may take recourse against the spouse who has made the renunciation. If he has performed more than one-half of a debt for which each of the spouses was fully joint and several liable prior to the dissolution of the marital community of property, then he may take recourse against the spouse who has made the renunciation to the extent that he has actually performed this debt.

Article 1:104 Legal requirement for a renunciation
- 1. The spouse who wants to make use of the right of renunciation defined in the previous Article, must ensure that within three months after the dissolution of the marital community of property a certificate of renunciation is registered in the Marital Property Register pointed out by Article 1:116 on penalty of losing this right.
- 2. If the marital community of property has been dissolved because of the death of the other spouse, then the three-month period starts to run as from the day on which the spouse who wants to make use of his right of renunciation has become aware of the death of that other spouse. If the marital community of property has been dissolved because it has been terminated or because of a legal separation, then the three-month period starts to run as from the date on which the court order has become final and binding.

Article 1:105 Renunciation by the heirs of one of the spouses
- 1. The heirs of the spouse whose death has caused the dissolution of the marital community of property or of the spouse who has died within the period set in the previous Article without having made a renunciation, all have the right to renounce their own share in the way as defined in the previous Article, provided that the renunciation is made within three months after they have become aware of the death of the spouse.
- 2. The right of the spouse to reclaim his bed, beddings and clothing from the marital community of property cannot be transferred and does not pass to his heirs.

Article 1:106 Extending the period for registration of the certificate of renunciation
The District Court in whose district the municipality is located where the certificate of renunciation must be registered, may extend the period set for registration one or more times on the ground of special circumstances, provided that a running period has not yet expired at that moment.

Article 1:107 Loss of the right to make a renunciation
- 1. The spouse or heir, who has appropriated assets of the marital community of property or who has concealed or misappropriated such assets, may no longer make a renunciation. Normal acts of administration and acts in order to preserve assets shall not have that effect.
- 2. The person who, after he has made a renunciation, conceals or misappropriates assets of the marital community of property, loses the right to invoke Article 1:103 paragraph 4.

Article 1:108 Renunciation by both spouses or their heirs
- 1. A renunciation by a spouse or his heirs after the other spouse or one of his heirs already had renounced the marital community of property or his share in it, shall not have the effects defined in Article 1:103 paragraph 2 and 3, and obliges the persons who are entitled to the marital community of property to liquidate it. Section 3 of Title 6 of Book 4 of the Civil Code concerning the liquidation of the estate of a deceased shall apply accordingly as much as possible.
- 2. A person who is having the obligation to liquidate the marital community of property, but who fails to comply with this obligation even after being formally noticed to render account for the liquidation, loses the right to invoke Article 1:103 paragraph 4.

Section 1.7.4 Termination of the marital community of property by court order

*) As of 1 January 2012 a new marital property law entered into force. Marital communities of property that came into existence prior to 1 January 2012 remain subject to the old marital property law [ the old statutory provisions can be found here].

Article 1:109 Grounds for termination of the marital community of property
A spouse may request [the District Court] for the termination of the marital community of property on the ground that the other spouse in a rashful manner incurs debts, wastes community assets, performs acts which obviously are in conflict with his partner's right of administration of the community assets or on the ground that the other spouse refuses to provide the necessary information about the state of the assets of the marital community of property and of the debts which may be recovered from these assets or about the way in which these assets have been administered.

Article 1:110 Publication of the request for termination of the marital community of property
The spouse who requests the termination of the marital community of property, may take all measures necessary to preserve his rights as provided by the Code of Civil Procedure.

Article 1:111 Legal effect of the court order to terminate the matrimonial community of property
- 1. If the spouse against whom the request is granted, has damaged the marital community of property since the start of the legal proceedings or in de period of six months prior to that start, because he has rashfully incurred debts or wasted community assets or because he has performed juridical acts as meant in Article 1:88 without the required approval or authorisation, then he is obliged to compensate the caused damage to the marital community of property.
- 2. A legal claim based on the previous paragraph must be filed within three years after the date on which the request for termination (disestablishment) of the marital community of property has been filed with the District Court.

Article 1:112 [repealed on 1 January 2012]

Article 1:113 Repair of the marital community of property
When a marital community of property has been dissolved by its termination, the spouses may afterwards again enter into a marital community of property, however only by means of a nuptial agreement.