On 20 December 2024, the Procurator General's Office at the Supreme Court published an opinion (ECLI:NL:PHR:2024:1393) on the question whether a debt owed by one spouse on account of a capital gain contribution by the other spouse in financing a pre-marital joint home falls into the matrimonial community of property. According to the Advocate General (A-G), this is indeed the case.

Facts and legal question

In this case, before the marriage, the husband had financed a larger share of the purchase price of the joint home than the wife. As a result, he had a claim against her. The question was whether this debt of the wife was included in the community property at the time of the marriage.

The statutory regulation in Article 1:94 paragraph 7 of the Civil Code (BW) states that debts that already existed before the marriage fall into the community of property, unless there is one of the statutory exceptions. The wife took the position that the debt was of a private nature and should be excluded from the community, while the husband argued that the debt fell into the community under the law.

Conclusion of the A-G: debt falls into the community

The A-G ruled that the woman's debt, arising from the man's pre-marital capital gains contribution, fell into the community of property under Article 1:94(7) of the Civil Code. This article provides that private debts of the spouses, with some specific exceptions, fall into the community of property at the start of the marriage.

The A-G notes that this was a deliberate choice of the legislator. The parliamentary history of the 2018 legislative amendment (which introduced the limited community of property) explicitly states that premarital debts are, in principle, in the community. This means that the wife's debt to the husband is halved by the marriage, as the community becomes half liable for the debt.

Implications for practice

This conclusion may have important implications for spouses who bought a property together before marriage with unequal financial contributions. If they marry in a community of property (as was common before 2018 or if they have explicitly opted for a full community of property), a premarital debt may fall into the community due to an additional contribution by one of the partners. This means that the debt will, in principle, be shared in the event of a divorce.

The opinion of an Advocate General (A-G) to the Supreme Court has no binding status, but it does play an important advisory role in the legal process. The Supreme Court is not obliged to follow the opinion. The A-G studies the case extensively and places it in the broader legal context, including case law, legislation and legal development. Although Supreme Court judges take the conclusion seriously, these opinions do not constitute case law. The Supreme Court may follow the conclusion, but may also decide otherwise. In short, the A-G's conclusion has authority, but the Supreme Court can deviate from it independently

However, should the Supreme Court adopt this conclusion of the A-G, spouses who want to protect unequal contributions would do well to draft prenuptial agreements in which they explicitly provide that a capital gain debt remains outside the community of property.

Conclusion

The A-G confirms that the law provides that a premarital debt on account of a multiple contribution by one of the spouses to a joint home falls within the community of property. This can lead to a halving of the debt at the time of marriage. Prospective spouses who want to protect an unequal contribution can only avoid this by drawing up prenuptial agreements.

Do you want advice on prenuptial agreements or the consequences of community of property? Then contact the family law lawyers at SPEE lawyers & mediation for expert legal advice.