Perhaps not the most joyful subject in this festive December month, but this is very important to consider if you are planning to get married (or are already married). Drafting nuptial agreements before getting married (or during marriage) helps to avoid misunderstandings and uncertainty in the future, during and at the end of the marriage, due to divorce or death. Nevertheless, it regularly happens that, as soon as the marriage ends and the nuptial agreement must be settled, there is disagreement about the provisions included in nuptial agreements.

In this article, I discuss a recent judgment of the Amsterdam Court of Appeal (29 October 2024, ECLI:NL:GHAMS:2024:2990) on the interpretation of nuptial agreements. This case highlights the importance of clear agreements and the possible consequences if the agreements are not properly recorded or understood.

What are nuptial agreements?

 Nuptial agreements are arrangements spouses make about their assets during and after their marriage. Since 1 January 2018, the so-called limited community of property is the legal standard in the Netherlands. In substance, this means that assets accumulated before the marriage remain private property of one of the spouses, unless agreed otherwise. Nuptial agreements (also called marriage contracts) allow spouses to deviate from the general rule, for example by opting for a general community of property, i.e. the system that was the standard until 1 January 2018. If spouses opt for a general community of property, in principle, all assets and debts acquired before and during marriage fall into the community of property.

The case study: general community of property or limited community of property?

In this particular case, the parties married in 2020. At that time, therefore, the ‘limited community of property’ standard applied. The parties had drawn up nuptial agreements in which they included a provision that read, ‘The legal community of property exists between the spouses’. Upon divorce, this particular provision led to disagreement between the parties. What exactly was meant by ‘the legal community of property’? The wife takes the position that the parties meant the ‘general community of property’, i.e. the legal standard before 1 January 2018. The husband, on the other hand, takes the position that they meant the ‘limited community of property’, i.e. the new standard since 1 January 2018. Particularly relevant in this case was that the house, bought by the husband shortly before the marriage, would fall into the community of property if the wife's position was followed. The husband argued that he had not intended this and that the nuptial agreements were misinterpreted by his wife. Thus, the Court had to address the question of whether or not the parties intended their nuptial agreement to extend the standard of the limited community of property to a full community of property.

The court applied the so-called Haviltex standard, which considers the intentions of the parties as reasonably apparent from the agreements made. Not only the literal wording of the provisions plays a role here, but also the circumstances of the case and any statements made by the notary.

Important considerations of the Court of Appeal:

1. Linguistic and contextual interpretation: While the wording of the nuptial agreement is important, the court also weighed heavily what the parties meant at the time. The legal proceedings revealed that the wife expressly wanted to deviate from the standard arrangement to create financial security.
2. Communications with the notary:The notary's explanation of the consequences of the nuptial agreement was decisive. From a message from the notary to the parties, it could be seen that the chosen wording intended a full community of property, not a limited community of property.
3. Legal context:Without nuptial agreements, the house would have remained a private asset of the husband. The fact that the parties intentionally drew up nuptial agreements indicates that parties intended to deviate from the standard limited community of property, according to the court.
   .

 Judgment: Extension to full community of property

The court of appeal concluded that the nuptial agreements were intended to extend the standard limited community to a general community of property. This meant that all premarital assets and debts fell into the community of property and had to be divided upon divorce.

Importance of the judgment for legal practice

This judgment highlights that in nuptial agreements, not only the wording but also the context and intentions of the parties are important. It shows how complex the interpretation of nuptial agreements can be and underlines the role of a diligent notary, as well as alert prospective spouses.

Advice for future spouses

1. Make your intentions clear:Discuss and document your intentions when drafting nuptial agreements.
2. Be well informed:Ask the notary for a detailed explanation and keep this documentation. Above all, seek the advice of a specialised family lawyer. After all, the latter has extensive experience when it comes to the consequences of nuptial agreements in case of divorce.
3. Careful wording:Make sure the wording of the terms matches your requirements to avoid misunderstandings.
   .

Not only in cases of divorce, but also prior to and during the drafting of nuptial agreements, it is wise to engage a lawyer specialised in family law. The specialised family law lawyers at SPEE advocaten & mediation are happy to assist you to protect your rights and look after your interests, but above all to advise you in order to prevent disagreements in the future. Feel free to contact us for advice.