DUTCH MATRIMONIAL PROPERTY LAW (IN INTERNATIONAL PERSPECTIVE)
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1 DUTCH MATRIMONIAL PROPERTY LAW (IN INTERNATIONAL PERSPECTIVE)
2 Dutch Matrimonial Law Introduction, types of partnerships: Marriage 1:30 BW Registered partnership 1:80a BW Cohabitation contract (Fiscal partnership)
3 Dutch Matrimonial Law Co-habitation contract No statutory basis (Notarial) deed Household costs, property, pension Fiscal advantages (tax-dispensations, fiscal partnership) Inheritance law : protection of partner against reserved rights.
4 Dutch Matrimonial Law Fiscal partnership 1.2 WetIB2001 Merging/division fiscal income and advantages of partners. - Interest on mortgage, BOX III income Qualifications: Marriage/GP/Notarial cohabitation contract Partners have ownership of house (main residence) Partners have a child
5 Dutch Matrimonial Law Main differences between marriage and registered partnership Divorce law: 1:80c.-1c BW ( flitsscheiding ) Parentage: acknowledgment children Foreign recognition limited Foreign partnerships: WetConflictenrecht GP 2011
6 Dutch Matrimonial Law Same sex marriage Since Comparable consequences as a registered partnership: - Acknowledgement children - Limited foreign recognition
7 Dutch Matrimonial Law Significant consequences of marriage and registered partnership universal community property regime 1:93 BW Divorce/separation: maintenance obligations Inheritance law Statutory division 4:13 BW
8 Dutch Matrimonial Law Legal regime: Universal community of property Mutual assets 1:94 BW, excluding : - Claused gifts/inheritances - Attached assets (nl: verknocht ) e.g. indemnity, insurance payments, pension
9 Dutch Matrimonial Law Legal regime: Universal community of property Authority of matrimonial assets - Gifts/inheritance - Acquired assets before of during marriage Liabilities: private or community debts
10 Dutch Matrimonial Law Marriage contract Only 25% of spouses are married with marriage contract Division of assets Annual or final settlement Important consequences annual settlement (1:141 BW)
11 Dutch Matrimonial Law Inheritance law spouse/partner Legal heir Statutory division Protection against reserved rights Protection with reserved rights
12 Dutch Matrimonial Law New Dutch Matrimonial Law Minor changes: not a new system of regimes Reimbursement rights 1:87 BW Dissolution community 1:99 1b BW Modifications contract
13 Codification Treaties: Book 10 of Dutch Civil Code, IPR Minor changes with limited impact coming EU-Regulations
14 Dutch IPR: 3 important timeframes Marriage entered before Marriage entered between and Marriage entered after
15 Marriage entered before Effects of Marriage Convention 1905: In general: 1. Before 1965: Law of the state of nationality of the man applies : - If 1905 applies: Law of the state of nationality of the man; if not: - Rules Chelouche van Leer
16 Marriage entered between and Applicable law determined by rules of the Case of Supreme Court: Chelouche-Van Leer: In general: 1. Designation of applicable law 2. Law of common nationality applies 3. Law of first marital domicile 4. Closest ties
17 Marriage entered after Applicable law determined by rules Convention on the Law Applicable to Matrimonial Property Regimes of In general, article 4 Hague Convention: 1. Designation of applicable law
18 Marriage entered after If no law has been designated and the have not a common nationality: - The law of the state of the first common residence applies If no law has been designated and the spouses have not a common residence: - The law of the state of the common nationality applies
19 Marriage entered after If no law has been designated and the have not a common nationality nor a common residence: - The law of the state the spouses are mostly connected: law of the closest ties applies
20 Marriage entered after In other circumstances (AND common nationality AND common residence, the following questions: A. Is the state of the common nationality a nationality state or a residence-state? B. Has the state of common nationality acceded to the Hague Convention (NL, Luxembourg, France)? C. Is the state of the common residence a nationality state or a residence-state? D. What period did the spouses had their common residence?
21 Marriage entered after Common Nationality - Common residence - Same nationality of a member State (nationality-state) - Common residence in a nationality-state Law of state common nationality applies
22 Marriage entered after Common Nationality - Common residence - Same nationality of a member State (nationality-state) - Common residence in a residence-state - Less than 5 years before marriage domiciled in state of common residence Law of state common nationality applies
23 Marriage entered after Common Nationality - Common residence - Same nationality of a member State (nationality-state) - Common residence in a residence-state - Longer than 5 years before marriage domiciled in state of common residence Law of state common residence applies
24 Marriage entered after Common Nationality - Common residence - Same nationality of a non-member State (nationality-state) - Common residence in a nationality-state Law of state common nationality applies
25 Marriage entered after Common Nationality - Common residence - Same nationality of a non-member State (nationality-state) - Common residence in a residence-state Law of state common residence applies
26 Marriage entered after Common Nationality - Common residence - Same nationality of a residence-state Law of state common residence applies
27 Marriage entered after Article 7 Hague Convention: automatic change of applicable regime, if spouses have not designated an applicable law or not have made a marriage contract - remigration - naturalization - more than 10 years residence in same state New applicable law only regards marital properties gained after change of applicable law
28 Mr. A.C.J. Huenges Wajer Mr. T. de Klein Huenges Wajer en Joosten Maastricht Netherlands p.o. box PA Maastricht
The parties therefore agree as follows:
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