Suppose, following a period of marital difficulties, you discover that your partner has entered into a contract of sale for the family home without your consent. What can you do? And what if that same contract also relates to commercial premises that do not qualify as the marital home? On 17 April 2026 (ECLI:NL:HR:2026:681) , the Supreme Court provided an important answer to these questions and clarified the scope of the statutory consent requirement for the disposal of the marital home.

The consent requirement under Article 1:88 of the Dutch Civil Code

Under Dutch family law, certain legal acts are subject to a consent requirement: a spouse requires the written consent of their partner in order to act legally. This requirement is laid down in Article 1:88 of the Dutch Civil Code (BW). The rationale behind this is the protection of the family home and the family’s interests. In principle, the marital home cannot be sold, gifted or otherwise disposed of without the consent of both partners.

Article 1:88(1)(a) of the Civil Code specifically stipulates that a spouse requires the consent of the other spouse for agreements relating to the disposal, encumbrance or letting of an asset serving as the marital home or of the right to rent such a home. This applies regardless of whether the marriage is under the community of property regime or a prenuptial agreement. After all, the aim is not to protect the joint assets, but to protect the family home as such.

The facts of this case: a purchase agreement without knowledge

In the case leading to the judgment of 17 April 2026, a husband had entered into a purchase agreement for both the marital home and a number of commercial premises, without the required consent of his partner. The wife discovered the agreement when she found a draft deed of sale bearing her name and signature, which she had never, however, signed. She subsequently had the purchase agreement set aside out of court through her solicitor on the basis of Sections 1:88 and 1:89 of the Dutch Civil Code.

The buyer objected to the full annulment and argued that the agreement should remain in force insofar as it concerned the commercial premises. The Court of Appeal ruled that the annulment on the basis of Article 1:89 of the Dutch Civil Code was only partially effective: exclusively for the part of the agreement relating to the marital home. The purchase agreement remained valid for the commercial premises. The Supreme Court was subsequently asked to rule on whether the Court of Appeal had thereby exceeded the scope of the legal dispute.

The Supreme Court’s ruling: partial nullity is possible

The Supreme Court upheld the Court of Appeal’s approach. Central to the case was the doctrine of partial nullity, laid down in Article 3:41 of the Dutch Civil Code. This article provides that if a ground for nullity or voidability concerns only part of the legal act, the legal act remains in force for the remainder, provided that, having regard to the content and scope of the legal act, this is not inextricably linked to the null and void or voidable part.

In the present case, the Supreme Court ruled that the Court of Appeal had rightly concluded that the annulment on the basis of Article 1:89 of the Dutch Civil Code only affected the part of the agreement relating to the marital home. After all, the consent requirement of Article 1:88 of the Dutch Civil Code does not apply to commercial premises as such. The agreement concerning the commercial premises could therefore remain in force, insofar as those parts could be regarded as independent and were not inextricably linked to the void part.

Section 1:89 of the Dutch Civil Code: the action for annulment in practice

Section 1:89 of the Dutch Civil Code gives the spouse whose consent was lacking the right to annul the legal act. This annulment may take place out of court, by means of a written declaration, or via a court ruling.

It is important to note that the power to set aside is subject to a limitation period: pursuant to Article 1:89(2) of the Dutch Civil Code, the right to set aside lapses three years after the competent spouse becomes aware of the legal act. This emphasises the importance of acting in good time. Anyone who waits too long after discovering a transaction concluded without consent may permanently lose their right to annul it.

Practical implications: when does this apply to you?

This judgment is of great practical importance in several respects. Firstly, it clarifies that the consent requirement under Article 1:88 of the Dutch Civil Code is limited to the marital home. If, in addition to the family home, a spouse also owns a holiday home, commercial premises or investment properties, the sale of these does not, in principle, require the other spouse’s consent, unless those properties are also used as the marital home or there are other grounds for the consent requirement.

Secondly, the Supreme Court makes it clear that partial annulment is a realistic scenario. A purchase agreement covering both the marital home and other immovable property does not need to be annulled in its entirety. This enables the court to protect the legitimate interests of third parties, such as the buyer, whilst at the same time ensuring that the protection of the family home remains intact.

Thirdly, the ruling provides guidance in divorce situations where swift action is required. If, during a (pending) divorce, you discover that your partner has carried out transactions without your consent that required your authorisation, speed is of the essence. The limitation and expiry periods continue to run, even if you are still in the process of negotiating the division of property.

Conclusion

The Supreme Court’s judgment of 17 April 2026 confirms that the protection of consent under Article 1:88(1)(a) of the Dutch Civil Code applies exclusively to the marital home and not automatically to other immovable property forming part of the same purchase agreement. Thanks to the doctrine of partial nullity (Article 3:41 of the Dutch Civil Code), an agreement may be set aside in respect of the part relating to the marital home, whilst the remaining part, if it is to be regarded as independent, remains in force. For spouses in a vulnerable situation, this judgment underlines the importance of seeking legal advice in good time: as soon as you suspect that your partner has entered into an agreement that required your consent, immediate action is necessary to protect your rights.

Do you have questions about the sale or disposal of the marital home, or do you suspect that legal acts have been carried out without your consent in relation to your family home? If so, please contact one of the family law solicitors at SPEE advocaten & mediation. They will provide you with expert advice and guidance on all matters relating to family law, including the protection of your rights regarding the marital home.