If spouses get divorced, the matrimonial community of property must be divided in half according to the law. People often make agreements about the division before the divorce. Some people then deviate from a division by halves. But how does a judge deal with such agreements? Does a court always assume an agreement to divide matrimonial property? Or does the main legal rule still apply?
community of goods
If no prenuptial agreements have been drawn up by the civil-law notary, a (limited) community of property arises. If spouses cannot agree on the division, the court must rule on this.
Procedure
In a case before the Court of Appeal in The Hague , the division of the surplus value of the matrimonial home is in dispute. The parties are married in general community of property.
The marriage is dissolved and the court decides that each is entitled to half of the surplus value of the house. The man is appealing against the decision. He indicates that in 2016 the parties concluded an oral agreement on the division of matrimonial property. This similarity justifies a different distribution.
Judgment of the court
The parties were married in general community of property, which also includes the home. Article 1:100 paragraph 1 of the Civil Code stipulates that spouses have an equal share in the community of property, unless otherwise agreed in a prenuptial agreement. Or when a written agreement on the division of matrimonial property between spouses has been concluded with a view to the imminent divorce.
The court considers that the main rule continues to apply in this case. The reason is that the agreements were not made in view of the divorce. Since the parties also did not enter into a prenuptial agreement by notarial deed, they could not deviate from the main rule with the agreement in 2016. The court affirms the court’s decision. The parties must divide the excess value in halves.
Conclusion
If an agreement is concluded with a view to a possible, but not yet under discussion, divorce, this cannot be said to be an agreement with a view to the imminent dissolution of the community of property. In this case, the parties should have had prenuptial agreements drawn up at the civil-law notary in order to be able to deviate.
