Matrimonial contract and divorce

More and more people are entering into marriage subject to a matrimonial contract. A matrimonial contract can be concluded prior to the marriage; however it can also still be drawn up by a civil-law notary during the marriage. The community of property is wholly or in part excluded by the matrimonial contract. The matrimonial contract contains the rules about which assets accrue to whom. The following variants are common.

Matrimonial contract precluding any claim by one spouse to assets accruing to the other spouse during the marriage

In this variant each spouse strictly retains their personal assets, regardless of at what time and in what manner the assets are acquired. The assets are not divided in any manner whatsoever in case of divorce and neither is the value of the assets. This is not the case if the assets are acquired by both partners, for example because the matrimonial home has been purchased by both partners. However, there can be a right to reimbursement. This is on the agenda if one partner has contributed to the assets of the other partner. This partner will then have the right to reimbursement of the amount which was contributed to the assets of the other, possibly with some increase in value.

Furthermore, during the settlement of the matrimonial contract the division of roles throughout the marriage does not play any role whatsoever. Because of this, it can occur that, in case of a matrimonial contract precluding any claim by one spouse to assets accruing to the other spouse during the marriage, the partner who did not or hardly worked during the marriage and took care of the children instead is left with virtually no assets after the divorce.

Periodical set-off clause

In most matrimonial contracts a set-off clause is included. Such a set-off clause means that the spouses each retain their personal assets but do have to settle the necessary finances amongst themselves. In case of a periodical set-off clause (also known as Amsterdam set-off clause) set-off must always take place after the expiry of a specified period. This is often after each year. What must be settled depends on the contents of the matrimonial contract. This is usually the extra saved income: the income which remains after all costs of the household are paid. The matrimonial contract also determines which income is intended, however arguments can ensue regarding this.

Final set-off clause

Another regularly occurring variant of the set-off clause is a final set-off clause. This clause means that each spouse retains his/her personal assets. The spouses must settle at the end of the marriage as if they had been married in a community of property. As a result of this, ultimately the value of the total assets are divided between the spouses, but not the assets themselves.

Experience has taught that people are often not well informed about the contents of their matrimonial contract. Furthermore, it appears that most people ignore the rules included in the matrimonial contract during the marriage. In addition, there has been much case law in this field over the past years and many new laws have been introduced. This can bring about unsuspected surprises at the time when parties obtain a divorce.

It is therefore important that an expert looks at the specific matrimonial contract, since the contents of every matrimonial contract are different and the legal consequences of a divorce are therefore also different in every situation. It is important that sufficient attention is paid to this.

Our family law lawyers are familiar with the most recent case law in this field and are experienced in assisting parties during the settlement of a matrimonial contract. Together with you we will go through the consequences of the settlement of the matrimonial contract during the divorce. We can also discuss with you at which point in time it is recommended to submit a divorce petition. In case of a matrimonial contract, this can be an important decision, for example because the income which is acquired from that time no longer needs to be settled. If necessary, we can proceed with the submission of a divorce petition immediately.

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Family Law