Dutch
Civil Code
Book 1 Law of Persons and Family Law
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.
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 Applicability of the statutory provisions
for a marital community of property
The statutory provisions of the previous Title [marital community of property]
apply to a the marital relationship between spouses married under a nuptial
agreement, as far as the provisions of that nuptial agreement do not explicitly
or by implication indicate otherwise.
Article 1:123 Community of benefits and income
When the nuptial agreement provides for a community of benefits and income,
Articles 1:124 up to and including 1:127 apply to it, as far as the provisions
of that nuptial agreement do not explicitly or by implication indicate
otherwise.
Article 1:124 Assets of a community of benefits and
income
- 1. As far as it concerns assets, the community
of benefits and income encloses all assets which the spouses have acquired
during the existence of the community of benefits and income on account
of another legal ground than an inheritance, a bequest or a donation,
with the exception of what falls outside the community of benefits and
income pursuant to the following paragraphs.
- 2. An asset not gratuitously acquired by
a spouse remains outside the community of benefits and income if more
than half its price is borne by this spouse personally.
- 3. Outside the community of benefits and
income remains what is collected on a claim which does not belong to the
community of benefits and income, as well as an obligatory claim for compensatory
damages which has taken the place of an asset belonging to the personal
property of one of the spouses, including a claim in respect of the depreciation
of such an asset.
Article 1:125 Liabilities of a community of benefits
and income
As far as it concerns liabilities, the community of benefits and income
encloses all debts of the spouses, with the exception of debts which either
already existed at the start of the community of benefits and income or
which are attached to an acquisition out of an inheritance, a bequest
or a donation or which are purely related to the person or the personal
property of one of the spouses and which usually are not paid, neither
in full nor in part, from any earned income. When a spouse has entered
into a debt in order to acquire an asset which shall belong to his personal
property and the creditor is aware of this fact, then this debt will not
fall in the community of benefits and income.
Article 1:126 Business assets and debts belonging
to a professional practice or business of one of the spouses
- 1. Assets and debts belonging to a professional
practice or business pursued by one of the spouses remain outside the
community of benefits and income. This provision does not apply to registered
property that has been registered in the name of the other spouse.
- 2. The profits and losses made in a professional
practice or business of one of the spouses must be compensated to or from
the community of benefits and income, which profits and losses have to
be determined according to standards which are generally accepted as reasonable.
- 3. As far as 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, then, for the purpose of the previous paragraph,
such a business is deemed to be a business of this spouse.
Article 1:127 Internal liability of the spouses for
debts of the community of benefits and income
At the dissolution of the community of benefits and income the compensations
meant in the previous Article and in Articles 1:95 paragraph 2 and 1:96
paragraph 2 have to be settled first; if, after this settlement, the assets
of the community of benefits and income appear to be insufficient to satisfy
all debts of that community, then these debts are borne by the spouse
from whose side they have fallen into the community of benefits and income
[i.e. the spouse who, as a party, entered into the debt], as far as the
nature of the debts does not lead to a different internal liability of
the spouses.
Article 1:128 Community of profits and losses
When the nuptial agreement provides for a community of profits and losses,
Articles 1:124 up to and including 1:126 apply accordingly to it, as far
as the provisions of that nuptial agreement do not explicitly or by implication
indicate otherwise.
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 the spouses are in dispute on the
point to whom a right to bearer or an unregistered movable thing belongs
and neither of them is able to prove his entitlement to such an asset,
then this asset is presumed to be a community asset if there exists a
community of property between the spouses that could enclose it; if such
a community of property is not present, then each of the spouses is presumed
to be entitled to one-half of that asset.
- 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 out of an inheritance, a bequest or a donation, nor
to the benefits (fruits) of such property and neither to assets that have
come in the place of such property or benefits, unless the nuptial agreement
indicates otherwise.
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 out of the inheritance or bequest 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 Obligatory claims arisen from an equalization
obligation are set in money
- 1. Without prejudice to paragraph 3, an equalization
shall only produce obligatory claims in money.
- 2. If both spouses are entitled to eligible
(demandable) obligatory claims arisen from equalization obligations in
the nuptial agreement, then both obligatory 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 authorisation, 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.
- 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]
| [prior Title] |