Dutch Civil Code
(prior to 1 January 2012)
After a long initial stage, a new marital property law has entered
into force as of 1 January 2012. Initially it was the intention to replace
the universal marital community of property as legal starting point for
each marriage by a limited marital community of property. Eventually it
was decided, however, that the universal marital community of property
remains the starting point. Nevertheless there are some changes in comparison
to the old marital property law, especially in regard of the liability
of the spouses for debts of the marital community of property after the
dissolution of their marriage, the possibility to make nuptial agreements
during the marriage and the power of the spouses to manage (administer)
the marital community of property. With regard to marital communities
of property that have come into existence prior to 1 January 2012, the
old marital property law as it was immediately before 1 January 2012 remains
applicable, also in future. Therefore, these old provisions can still
be found on this page.
Title 1.7 Marital community of property
(prior to 1 Januari 2012)
Title 1.7 Marital community of property
Section 1.7.1 General provisions
Article 1:93 Universal marital community of property
between the spouses
As from the moment on which the marriage has been contracted, a universal
marital community of property shall exist between the spouses by operation
of law, to the extent that the they have not made derogating arrangements
by means of a prenuptial agreement.
Article 1:94 Assets and debts belonging to the marital
community of property
- 1. As far as it concerns
assets, the marital community of property encloses all present and future
assets of the spouses, with the exception of assets with regard to which
the testator in his last will or the donor at the donation has determined
that they do not belong to a community of property and with the exception
of the right of usufruct meant in Section 2 of Title 3 of Book 4 of the
Civil Code.
- 2. As far as it concerns
liabilities, the marital community of property encloses all debts of each
of the spouses.
- 3. Assets and debts which
in a particular way are attached to one of the spouses personally, only
belong to the marital community of property as far as this is not in disagreement
with that attachment.
- 4. Without
prejudice to the provisions of Article 1:155, pension entitlements subject
to the Act on the Equalisation of Pension Entitlements at a Separation
(Bulletin of Acts and Decrees, 1994, 342) and pension entitlements related
to pensions for surviving dependants do not belong to the marital community
of property.
Article 1:95 Settlement of debts belonging to the
marital community of property
- 1. In order to collect an
obligatory claim against a spouse that, within the marital relationship,
is a debt of the marital community of property, both, the assets of the
marital community of property and the personal assets of this spouse,
may be sold off by the creditor.
- 2. A spouse from whose personal
assets a debt of the marital community of property has been satisfied,
is entitled to an equivalent compensation which has to be paid from the
assets of the marital community of property.
Article 1:96 Settlement of debts not belonging to
the marital community of property
- 1. The assets of the marital
community of property may as well be sold off by a creditor to collect
an obligatory claim against a spouse that, within the marital relationship,
is not debt of the marital community of property, unless the other spouse
puts forward personal assets of the first mentioned spouse that provide
sufficient recourse.
- 2. Where a debt of a spouse,
not belonging to the marital community of property, has been satisfied
from assets of the marital community of property, this spouse has to pay
an equivalent compensation to the marital community of property.
Section 1.7.2 Administration of
the marital community of property
Article 1:97 Right of administration
- 1. An asset of the marital
community of property falls under the administration of the spouse from
whose side it has been brought into the marital community of property,
as far as the spouses have not made another arrangement by means of a
nuptial agreement or as far as the court has not ordered differently under
application of Article 1:91. An asset that must be regarded to have come
in the place of a specific other asset, falls under the administration
of the spouse who administered the substituted asset. An asset, however,
that is registered in the name of a spouse, falls under the administration
of this spouse. Each of the spouses may on behalf of the marital community
of property interrupt a prescription period.
- 2. When an asset of the
marital community of property, with approval of the spouse under whose
administration it remained, has been made subservient to the professional
practice or business of the other spouse, then the administration of that
asset shall be exercised exclusively by this other spouse as far as it
concerns acts to be 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.
Article 1:98 Information duty
If asked for, the spouses shall provide each other with information about
the way personal or community property has been administered and about
the state of the assets and debts of the marital community of property.
Section 1.7.3 Dissolution of the
marital community of property
Article 1:99 Grounds for dissolution of the marital
community of property
- 1. The
marital community of property dissolves by operation of law:
a. when the marriage
ends;
b. upon a legal separation;
c. by
a court order in which the marital community of property is terminated;
d. by a later made
nuptial agreement in which the termination of the marital community of
property is arranged.
- 2. When an application for
a divorce, legal separation or dissolution of the marital community is
filed at court, the applicant may already at the same time file a legal
claim in accordance with Title 7 of Book 3 of the Civil Code for an injunction
against the defendant to divide the marital community of property [Article
3:178 DCC], for a judicial decision which determines the way in which
the division must take place [Article 3:185 DCC] or for a judicial decision
which establishes the division itself [Article 3:185 DCC], each time insofar
the marital community of property will be dissolved.
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 spouse
remains liable for the full extent of the debts of the marital community
of property for which he was liable as a party prior to the dissolution.
He remains liable for half of the other debts of the marital community
of property; for that half of the debt he is joint and several liable
next and in addition to the other spouse [who is liable for the entire
debt pursuant to the first sentence of this Article].
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
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
- 1. An application as meant
in the previous Article must be registered in the marital property register,
pointed out by Article 1:116, and must be published in a national daily
newspaper or in a daily newspaper circulating in the region where the
court, having jurisdiction over the request, is located. The publication
lists the date of the application and the surname, the forenames, the
occupation and the domicile of each spouse. The court order may not be
given before at least one month since this publication has passed.
- 2. The spouse who requested
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. The court order honouring
the request to terminate the marital community of property has retroactive
effect to the day on which the publication requirements of paragraph 1
of the previous Article are met, as from which day the spouses are deemed
to have been married under exclusion of any community of property, yet
under such additional conditions as indicated in the court order.
- 2. 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.
- 3. A legal claim based on
the previous paragraph must be filed within three years after the date
on which the court order has become binding and final.
Article 1:112 Protection of third persons
- 1. In order to have effect
against third persons who are unaware of the fact that the marital community
of property has been dissolved, the termination of the marital community
of property must be published and, after the court order has become final
and binding, registered in the Marital Property Register pointed out by
Article 1:116.
- 2. The
publication takes place by placing an extract of the court order in the
Dutch Government Gazette ('Staatscourant') and in one or more daily newspapers
pointed out to this end in the court order. The extract contains the information
specified in Article 1:110 paragraph 1, as well as the date of the court
order and the name of the court which has given it. The grounds on which
the court's decision is based, may not be mentioned in the extract.
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.
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