If you were married before 1 January 2018, there is automatically community of property between the spouses. If you do not want this, you must draw up a prenuptial agreement. Married after 1 January 2018? Then a limited community of property between the spouses applies. If you do not want this, you must agree to a prenuptial agreement. The choice you make has major consequences for the division of assets and debts both during and after the marriage.

It is therefore important to make arrangements about what community of property you want to establish with your partner before entering into the marriage. Do you think you are too late because you are already married and did not make the right choice? Then you still have a choice by making or changing a prenuptial agreement.

Final settlement clause

Spouses can use prenuptial agreements to make arrangements about the assets they build up during their marriage and to whom these assets belong, but also about what should happen to these assets when (one of) the parties files for divorce in court. At the end of the marriage, the assets and debts of each spouse must be itemised.

There are a number of settlement clauses that the parties can agree to in their prenuptial agreement, including the ‘final settlement clause’. In the event of a divorce, this clause requires the value of the assets to be determined and the spouse with the most assets must pay an amount to the other spouse so that both have the same amount of assets. One spouse then has a right to compensation from the other spouse.

In matrimonial property law, rights of compensation can arise when a shift in assets takes place between the spouses for which there is no legal basis. The right of compensation arises at the moment the shift in assets takes place.

On 11 February 2025, the Central Netherlands District Court issued a ruling on a final settlement clause that the parties had agreed to in their prenuptial agreement and what the consequences are for gifts received during the marriage (ECLI:NL:RBMNE:2025:470).

In this case, the parties agreed in the prenuptial agreement that the marriage would not create a community of property. This means that both have their own separate assets. The parties have also agreed that in the event of divorce they will settle as if there were community of property between them. They have also agreed that when determining the assets they must settle with each other, gifts made to one of the spouses will be disregarded.

During the marriage, the husband received gifts from his parents. It has been established that the parties spent these funds before the divorce petition was filed. The parties disagree about the size of the gifts. It is no longer possible to determine this with any accuracy.

During the marriage, the parties had separate estates. This means that the gifts belonged to the man's private estate. There was no shift in assets. In the case of a final settlement clause, a settlement obligation only arises when the petition for divorce has been submitted to the court. The money from the gifts had been spent during the marriage and was therefore no longer present on the date the petition was submitted. The husband therefore cannot deduct these amounts from his net assets to be settled. The court is of the opinion that there is therefore no reason to grant the husband a right to compensation.

The situation could be completely different if the parties were married under the community of property regime or had agreed to a different settlement clause.

To prevent these kinds of discussions, it is advisable to have gifts and inheritances made to one of the spouses paid out to a private bank account and not to the joint account. A right to compensation can arise upon receipt of private funds in the community.

Usually it is possible to trace the receipt of the donation or inheritance, but it is difficult to trace where this money was spent after many years. It may involve multiple payments. For example, the money may have been spent on a more expensive holiday that would not have been taken without the donation or inheritance. It is important to know whether this money was spent on joint or private debts. A set-off claim cannot be established if the value of all the components belonging to the set-off capacity is not known.

It is therefore important to record properly if you use private assets for joint purposes.

During marriage, this usually does not cause any problems, but it can lead to disputes in the event of divorce. You can resolve this by drawing up or amending a prenuptial agreement before the marriage or during the marriage.

Conclusion

It is essential to make clear agreements with your future spouse before entering into marriage about:

• whether to marry with a limited community of property or with a community of property;
• whether or not to enter into a prenuptial agreement;
• how the spouses will contribute to the household expenses and community debts during the marriage;
• if you want to draw up a prenuptial agreement: what type of settlement clause you want to agree on;
• the contribution of personal assets during the marriage;
• other matters that are important for you to record.
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If you intend to get married or want to draw up or change a prenuptial agreement during your marriage, it is wise to seek legal advice on which matrimonial property regime best suits your (financial) situation and to have your wishes properly recorded in a prenuptial agreement. At SPEE advocaten & mediation, we have many years of experience in family law. Feel free to contact us for expert advice! Contact page SPEE advocaten & mediation.