It often happens that during the marriage or registered partnership, one partner pays a community debt or a private debt of the other partner from their private assets. This can result in a right to compensation in the event of divorce or dissolution of a registered partnership. You then have the right to recover part of this property, even if it concerns an investment in jointly owned property. On 21 March 2025, the Supreme Court issued a ruling that answers the question of how we should deal with a home bought jointly before the marriage, the purchase price of which was paid in full by one partner. What was the outcome? Read the full contribution here.
Marital property regime
Full community of property
If you were married or entered into a registered partnership before 1 January 2018, you and your partner are subject to a full community of property regime. This means that all existing and future assets and debts become common property. Whatever was private before the marriage/registered partnership becomes the joint property of both of you. Any gifts or inheritances you receive also become common property, unless the donor or testator has stipulated that it is not to be included in the division of property by means of an exclusion clause.
If you get divorced or your partnership is dissolved, the community of property must be divided. Both you and your ex-partner are then entitled to half.
If you do not want a full community of property, you and your partner should draw up a prenuptial or partnership agreement.
Limited community of property
If you marry or enter into a registered partnership after 1 January 2018, a limited community of property will be established.
This means that there are three estates instead of one joint estate, namely your private estate, your partner's private estate and the joint estate. Private assets and debts that existed before the marriage, inheritances and gifts do not fall under community property and remain private.
Only income, possessions and debts acquired during the marriage or registered partnership fall under community property.
Within this limited community, the law stipulates that if you and your partner bought a home together before marriage or registered partnership, it becomes part of the community when you enter into marriage or registered partnership. This also applies to the mortgage loan that you took out together with your partner. Even if there is unequal contribution. If you have contributed more than your partner to the joint home, the home will still become jointly owned in equal shares. This inequality is then cancelled out by entering into a marriage or registered partnership.
In the event of a divorce or dissolution of a registered partnership, only the community property needs to be divided, i.e. what was already jointly owned before the marriage and what was acquired during the marriage.
If you do not want a limited community of property, you and your partner must draw up a prenuptial or partnership agreement.
Compensationrights
It often happens that during the marriage or registered partnership, one partner pays a community debt or a private debt of the other partner from his/her private assets. This can result in a right to compensation in the event of a divorce or dissolution of a registered partnership. You would then have the right to recover part of this property, even if it concerns an investment in jointly owned property.
Recent ruling by the Supreme Court
On 21 March 2025, the Supreme Court issued a ruling that answers the question of how we should deal with a home bought jointly before marriage, the purchase price of which was paid in full by one partner (ECLI:NL:HR:2025:436).
In this case, the parties married after 1 January 2018 under the regime of a limited community of property. They had jointly purchased a home before their marriage. This home is also in both their names and they are both half owners. The home therefore became community property when the marriage was entered into.
The parties did not need to take out a mortgage to purchase this home. The man paid the full purchase price. At the time of transfer of the home and payment of the purchase price, the man had a claim against the woman for half of the purchase price he paid.
The Supreme Court ruled on the question of whether the man has a right to compensation towards the woman and whether such a right to compensation and the resulting obligation (read: debt) to pay compensation falls under the limited community of property.
The man paid the full purchase price of the house.
Before entering into the marriage, the man paid the full purchase price of the house from his private assets, while he was only obliged to pay half of this. The other half should have been paid by the woman.
The Supreme Court ruled that this is a claim by the man against the woman that arose before the marriage. When entering into the marriage, this claim remains private and does not fall under the marital community property. Subsequently, the Supreme Court ruled that the debt corresponding to that claim also does not fall under the marital community. If that were the case, it would undermine the right to compensation that arose before the marriage and the man would lose half of his claim. The man therefore does not have to pay half of his claim.
Conclusion
This ruling emphasises once again that it is very important to have a marriage contract drawn up before entering into a marriage or registered partnership. This is especially true if partners have already been living together for some time before entering into a marriage or registered partnership.
If you intend to enter into a marriage or registered partnership, it is wise to seek legal advice about 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.