This is one of a series of guest posts from GMW lawyers in The Hague, offering information on legal matters in English.
If you’re an Australian who got married in Australia, but now lives in The Netherlands, you may think that if you get divorced, it will be under Australian law. Actually Dutch law could still apply when you get divorced – and that has consequences for how you can divide your property. International divorce lawyer Marjet Groenleer highlights key considerations about the division of property for Australians divorcing in The Netherlands.
Which law will apply to your divorce?
Even though you were married in Australia, and even if you married an Australian, Dutch law could apply to your divorce, and to the division of your property when you get divorced in the Netherlands.
Does that really matter?
Yes. If Dutch law applies to you, then all assets or property that you and your ex own will automatically belong to a “matrimonial community” or “community of property”. This means you will have to share those assets 50/50 when you get divorced.
Your assets are not just your houses, stocks or cars – they may include an inheritance you received, or even gifts from your parents.
If you were married after 1 January 2018, your inheritance and gifts will be automatically excluded from the community of property, as Dutch law changed on this date.
If you married before 1 January 2018, the only way to exclude your inheritance and gifts from the community of property is
- if you have a prenuptial agreement in which you exclude inheritances or gifts from the community of property.
- If your parents (or others from who you inherit or receive a gift) have a so-called exclusion clause in their will.
If you do not have a prenuptial agreement and there is no exclusion clause, you will have to share your inheritance with your ex.
What is an exclusion clause?
An exclusion clause is a clause in a will that expressly states that an inheritance should not fall into any marital community of property.
If such a clause exists then, for instance, an inheritance received during the marriage will not become part of any community of assets and property into which the heir(ess) is married. Even if you get divorced under Dutch law.
An exclusion clause is typically Dutch, so you may not have heard this term used in other countries, but it could still work to your benefit.
For her own use and benefit absolutely
In countries like Australia, a sentence like “for her own use and benefit only” is frequently used in wills. Such a sentence could work to your advantage.
Under Dutch law, this could be considered an exclusion clause which could prevent your inheritance falling within a marital community of assets and property.
In a recent case, the courts of appeal in Arnhem-Leeuwarden had to decide whether this qualified as an exclusion clause when a wife received an inheritance from her Australian uncle during her marriage (ECLI:NL:GHARL:2018:3767). In this case, the uncle’s last will and testament contained the sentence mentioned above.
First, the courts of appeal considered that the will should be interpreted according to Australian law (referring to international private law legislation laid down in EU-regulations and international treaties).
Further, the court found that because the uncle had deliberately added this sentence to his will, even though in Australia inheritances by default stay out of any marital community, that the uncle had clearly expressed his wish to leave the inheritance solely to the wife.
The court therefore decided that this qualified as an exclusion clause. The result was that the wife did not need to share her inheritance with her ex.
How can you ensure you don’t need to share your inheritance?
There are two ways to protect any future inheritance. The first is to go to a notary and make a prenuptial agreement in which you exclude gifts and inheritances from any marital community, as mentioned above. The other option is to make sure that any future testators have an exclusion clause in their wills.
Dealing with the reality of divorce in The Netherlands
Getting divorced in another country and having to navigate the impact of a new legal system can add an extra pressure during to an already stressful situation.
When you face divorce in The Netherlands and you’re unsure about your rights, consider getting legal advice from a lawyer who specialises in international divorces. They can help you get a clear picture of your rights, advise you on the applicable law, and help you find a solution.
If you have a question about getting divorced in The Netherlands, or you’d like to discuss your situation, please contact Marjet Groenleer.
Marjet Groenleer is an attorney-at-law and associate partner at GMW lawyers in The Hague. She has been active in family law for more than 15 years, focused on international divorces and is a trained divorce mediator.
Marjet has particular expertise in the international aspects of family law, and is familiar with several foreign legal systems. She is an expert in dealing with complex financial and multi-jurisdictional cases of an international family breakdown. Many of her clients are expats in The Netherlands for the various international organisations and companies based in The Netherlands, specifically in the area of The Hague (such as EPO, Estec, OPCW, NATO, the tribunals, ICC, Shell, etc.)
Marjet worked as a lecturer in International Civil Law for several years and at the Court of Appeals in The Hague in the family law sector. Today, she is a deputy judge in the Court of Appeals in Amsterdam and publishes regularly in professional journals.
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