Dutch Civil Code

Book 1 Law of Persons and Family Law

Title 1.8 Nuptial agreements*)

*) 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 1.8.1 Nuptial agreements in general

Article 1:114 Conclusion of a nuptial agreement before or during the marriage
A nuptial agreement may be concluded by the prospective spouses before their marriage (prenuptial agreement) or during their marriage (postnuptial agreement).

Article 1:115 Notarial deed; written authorisation for representation
- 1. A nuptial agreement must be entered into by means of notarial deed under penalty of nullity.
- 2. An authorisation to represent one of the parties in entering into a nuptial agreement must be granted in writing and must include the provisions to be drawn up in the nuptial agreement.

Article 1:116 Protection of third persons
- 1. Provisions in a prenuptial agreement can only be invoked against third persons who were unaware of their existence if those provisions have been registered in the public Marital Property Register, kept at the Registry of the District Court in whose district the marriage was contracted or, if the marriage has been contracted outside the Netherlands, at the Registry of the District Court of The Hague.
- 2. The organisation and method of consultation of the Marital Property Register shall be regulated by Order in Council.
- 3. By Order in Council it is possible to regulate, in derogation from paragraph 1, that the register shall be kept elsewhere than at the Registry of the District Court. It is possible as well to regulate by Order in Council that the presentation of data which are to be registered in the register can take place only in a manner as defined in that Order in Council.

Article 1:117 Legal incapacity to enter into a prenuptial agreement
- 1. A nuptial agreement concluded or changed before the marriage is contracted (prenuptial agreement) is only valid when the persons whose approval for the marriage is legally required, have granted their approval in the notarial deed to the nuptial agreement or its changing; where the authorisation of the Subdistrict Court is required, it is sufficient to attach the court order to the original notarial deed. Article 1:39 paragraph 1 applies accordingly to the request for an authorisation of the Subdistrict Court.
- 2. A nuptial agreement concluded prior to the marriage (prenuptial agreement) shall take effect from the moment on which the marriage is contracted; it is not possible to point out another moment for this purpose.

Article 1:118 Legal incapacity of adults under guardianship
An adult spouse placed under guardianship ('curatele') may, after the marriage has been contracted, only make or change a nuptial agreement with approval of his legal guardian ('curator').

Article 1:119 Authorisation of the District Court for making a postnuptial agreement
- 1. Spouses who during their marriage want to make or change a nuptial agreement, need the authorisation of the District Court for doing so. When presenting the petition a draft of the notarial deed has to be submitted as well. The petition may be filed without intervention of a solicitor.
- 2. The District Court may only refuse to grant its authorisation in full or in part if there is a danger that the creditors of the spouses will be harmed in their rights of recourse or if one or more provisions of the nuptial agreement are in conflict with rules of mandatory law, morality or public order.
- 3. If the notarial deed is not executed within three months after the moment on which the court order, in which the required authorisation is given, has become final and binding, then this authorisation is no longer valid.

Article 1:120 Postnuptial agreement made during the marriage (protection of third persons)
- 1. A nuptial agreement made or changed during the marriage (postnuptial agreement), takes effect from the day following the one on which the notarial deed has been executed, unless this deed indicates a later date for this purpose.
- 2. The provisions in such a postnuptial agreement can only be invoked against third persons who were unaware of their existence, if those provisions have been registered in the public Marital Property Register for a period of at least fourteen days.

Article 1:121 Content of a nuptial agreement
- 1. Parties may derogate in their nuptial agreement from the statutory provisions for a marital community of property, provided that the derogating provisions are not in conflict with rules of mandatory law, morality or public order.
- 2. Parties cannot stipulate in their nuptial agreement that, within their mutual relationship, one of them is accountable for a larger share of the debts than his share in the assets of the community of property.
- 3. Parties cannot derogate from rights derived from having authority over children (parental responsibility), nor from rights granted by law to a surviving spouse.

Article 1:122 [repealed on 1 January 2012]

Article 1:123 [repealed on 1 January 2012]

Article 1:124 [repealed on 1 January 2012]

Article 1:125 [repealed on 1 January 2012]

Article 1:126 [repealed on 1 January 2012]

Article 1:127 [repealed on 1 January 2012]

Article 1:128 [repealed on 1 January 2012]

Article 1:129 [repealed on 01-09-2002]

Article 1:130 Evidence against third persons that an asset is personal property
Where a spouse has entered into a marriage under a prenuptial agreement in which is indicated that rights to bearer or unregistered movable things, belonging to him at that moment, are not brought into the community of property, then he is only able to prove against third persons that these assets still belong to his personal property if he has named each asset specifically in the registered nuptial agreement or in a list signed by both spouses and the notary which is attached to the original notarial deed of the nuptial agreement. If a named asset is not sufficiently specified in these documents, then additional supporting evidence may be supplied by all means of proof; if a spouse was not aware that an asset belonged to him at the moment on which he entered into the marriage under a prenuptial agreement, then he may use any means of evidence to prove that it is his personal property.

Article 1:131 Lack of evidence between the spouses
- 1. Where spouses, who are not married in a marital community of property, are in dispute on the point to whom of them a right to bearer or an unregistered movable thing belongs, and neither of them is able to prove his entitlement, that asset is presumed to belong for one half to one of the spouses and for the other half to the other spouse.
- 2. This legal presumption does not apply to the disadvantage of the creditors of the spouses.

Section 1.8.2 Marital equalization obligations

Subsection 1.8.2.1 General rules for marital equalization obligations

Article 1:132 Applicability of Section 1.8.2 DCC
- 1. The present Section applies to nuptial agreements providing one or more obligations to equalize income or property of spouses (marital equalization obligations).
- 2. It is possible to derogate in the nuptial agreement from the statutory provisions of the present Section, either explicitly or by the nature of a clause, unless the law indicates otherwise.

Article 1:133 Mutual obligation to equalize specific income or property
- 1. The obligation to equalize income or property (marital equalization obligation) is reciprocal for both spouses.
- 2. An equalization obligation relates exclusively to income and property acquired by the spouses during the existence of this obligation. An equalization obligation does not relate to property acquired by a spouse due to a succession by inheritance, a bequest, a testamentary disposition under a condition or a donation, nor to the benefits (fruits) derived from such property and neither to assets that have come in the place of such property or benefits. Neither does the equalization obligation relate to property existing of rights to claim the establishment of a usufruct as referred to in Articles 4:29 and 4:30, a usufruct established on the basis of the before mentioned statutory provisions, and what is acquired pursuant to Articles 4:34, 4:35, 4:36, 4:38 and 4:126, paragraph 2, under (a) and (c), and Section 4.4.2 of the Dutch Civil Code.

Article 1:134 Exclusion clause made by a testator or donor
It is possible to stipulate in a last will that no equalization shall take place of property acquired due to a succession by inheritance, a bequest, a testamentary disposition under a condition or a donation, nor of the benefits (fruits) of such property, even if such an equalization would have to be implemented pursuant to the nuptial agreement. The same stipulation can be made when making a donation as far as it concerns the donated property and the benefits thereof.

Article 1:135 Equalization to obtain equal parts in de value of the income or property
- 1. The equalization of income or property is done in such a way that both spouses are entitled to half of the value of the income or property falling within the scope of the equalization obligations.
- 2. Articles 3:181, 3:183 and 3:195 up to and including 3:200 apply accordingly to such an equalization, on the understanding that in order to assess whether a spouse has been damaged as referred to in Article 3:196 the reference days laid down in Article 1:142 are decisive. Article 677 up to and including Article 680 of the Code of Civil Procedure apply accordingly.
- 3. Where a spouse has deliberately concealed, lost or set aside an asset which belongs to the property subject to equalization and, as a result, the value of this asset has not been involved in the equalization, this spouse has to compensate the entire value of that asset to the other spouse instead of merely making an equalization for half of its value.

Article 1:136 Assets subject to equalization used for the acquisition of property
- 1. If an asset has been acquired in exchange for a counter performance which is partly taken from property subject to equalization, then the acquired asset shall be attributed to that property for a share equal to the value of the part of the counter performance that was taken from the property subject to equalization, divided by the total value of that counter performance, both values to be calculated at the moment of acquisition. If a spouse has incurred a debt in order to acquire an asset, then this asset is attributed in accordance with the first sentence to the property subject to equalization to the extent that the debt belongs to that property or is paid off or performed with usage of assets from that property.
- 2. Where the spouses are in dispute on the issue whether an asset is to be attributed to the property subject to equalization or not and neither of them is able to prove that the asset must be attributed to other property than the property subject to equalization, then this asset shall be attributed to the property subject to equalization. This legal presumption does not apply to the disadvantage of the creditors of the spouses.

Article 1:137 Debt-claims arisen from an equalization obligation are set in money
- 1. Without prejudice to paragraph 3, an equalization shall only produce debt-claims in money.
- 2. If both spouses are entitled to eligible (demandable) debt-claims arisen from equalization obligations in the nuptial agreement, then both debt-claims shall be set off against each other by operation of law up to the amount of the claim with the lowest value.
- 3. A spouse only has to accept and may only demand other assets than money as performance of a debt as meant in paragraph 1 if a payment of money would be unacceptable to standards of reasonableness and fairness.

Article 1:138 No obligation to render account for administration of private property subject to equalization
- 1. The spouses are towards each other not obliged to render account for the administration of their personal property falling within the scope of marital equalization obligations. Poor administration of this property does not result in any liability towards the other spouse.
- 2. Each year the spouses may request from each other a specified, written and signed list of the income and property falling within the scope of the equalization obligations. It is not possible to derogate from this provision.
- 3. Disputes between the spouses with regard to this list shall be settled by the District Court upon the request of one of the spouses.

Article 1:139 Cancellation of the mutual marital equalization obligations and damages
- 1. A spouse may request for the cancellation of the mutual obligations to equalize income or property if the other spouse rashly incurs debts, wastes his assets or refuses to supply a list of the to be equalized income or property as referred to in Article 1:138 paragraph 1.
- 2. If the spouse against whom the request is filed, has damaged the property subject to equalization 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 assets subject to equalization or because he has performed juridical acts as meant in Article 1:88 without the required approval or decision of the District Court, then he is obliged to compensate the damage caused.
- 3. It is not possible to derogate from paragraph 1 or 2 of the present Article.

Article 1:140 Extension of payment of chargeable equalization sums
- 1. At the request of the spouse who is obliged to make a payment in order to comply with his obligation to equalize income or property, the District Court may, for compelling reasons, order that a chargeable sum of money, whether or not to be increased with an interest as specified in the court order, may be paid in instalments or only has to be paid after a specific period of time, either in one lump sum or in periodical payments. When making this decision the court pays attention to the interests of both parties. The court may order the spouse who is obliged to make the payment to provide, within a specific period, real or personal security for the payment of the indebted sum of money.
- 2. When the spouse meant in paragraph 1 has died, the provisions of that paragraph shall apply accordingly to his legal successors under universal title.
- 3. It is not possible to derogate from paragraph 1 or 2 of the present Article.

Subsection 1.8.2.2 Periodical equalization obligations

Article 1:141 Special statutory provisions for periodical marital equalization obligations
- 1. When the equalization obligations in the nuptial agreement only relate to a specific period of the marriage and no income or property has been equalized over this period, then the equalization obligations over this period remain effective and shall extend themselves to the balance of the investments and reinvestments of what should have been equalized and to the benefits (fruits) thereof.
- 2. When the equalization obligations in the nuptial agreement only relate to a specific period of the marriage, then these obligations shall end at the moment specified in Article 1:142 even when this period is still running.
- 3. If a periodical equalization obligation in a nuptial agreement as referred to in paragraph 1 has not been complied with at the end of the marriage, then the property present at that moment is presumed to consist of what should have been equalized, unless something else results from the standards of reasonableness and fairness in view of the nature and scope of the equalization obligation. Article 1:143 applies accordingly.
- 4. If a spouse has decisive power to determine if the profits of a business, which is not directly pursued for his own account [but for instance for account of a private limited company of which he holds the majority of the shares], will be distributed directly or indirectly to him and the nuptial agreement provides for an equalization obligation which covers business profits as well, then the not distributed profits of that business, as far as this is reasonable according to common opinion, shall be taken into account also in determining the extent of the equalization obligation of that spouse, without prejudice to paragraph 1.
- 5. Paragraph 4 applies accordingly if the spouse pursues a business for his own account.
- 6. A right of action to claim an equalization as meant in paragraph 1 does not become prescribed before three years have passed since the end of the marriage or since the court order establishing a legal separation has become final and binding. This period cannot be shortened.

Subsection 1.8.2.3 Final equalization obligation

Article 1:142 Reference day for the composition and extent of the property subject to equalization
- 1. As reference day for the determination of the composition and extent of the property subject to equalization shall apply:
a. when the marriage or registered partnership has ended because of the death of one of the spouses or registered partners: the time of his death;
b. when the marriage is ended by divorce: the moment on which the application for divorce was filed;
c. in case of a legal separation: the moment on which the application for the legal separation was filed;
d. when the mutual marital equalization obligations are cancelled pursuant to Article 1:139: the moment on which the application for the cancellation of these obligations was filed;
e. when the registered partnership is terminated with mutual consent: the moment on which the agreement to terminate the registered partnership has been contracted;
f. in case of a dissolution of the registered partnership upon the request of one or both of the spouses: the moment on which the application for the dissolution of the registered partnership was filed;
g. in the event that a spouse has gone missing and the other spouse remarries or enters into a registered partnership: 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 by nuptial agreement of the mutual obligation to equalize: the moment meant in Article 1:120, paragraph 1.
- 2. It is possible to derogate by written agreement from paragraph 1, openings words and the provisions under point (b) up to and including point (f).

Article 1:143 Description of the property to be equalized
- 1. As from the moments mentioned in Article 1:142 paragraph 1 each of the spouses may request for a description of the other spouse's property subject to equalization.
- 2. Articles 671 up to and including 676 and 679 of the Code of Civil Procedure apply accordingly.
- 3. When a spouse has died, the provisions of the previous paragraphs shall apply accordingly to his legal successors under universal title.
- 4. It is not possible to derogate from the paragraphs of the present Article.

Article 1:144 [repealed on 01.09.2002]

Article 1:145 [repealed on 01.09.2002]

Section 1.8.3 [repealed on 01.01.2003]

Article 1:146 [repealed on 01.01.2003]

Article 1:147 [repealed on 01.01.2003]

Article 1:148 [repealed on 01.01.2003]