In divorce cases, it frequently happens that one of the parties is unwilling to voluntarily cooperate in the sale of the marital home. For a long time, the question has been whether an order to cooperate in selling the home can be granted in summary proceedings. Jurisprudence differs on this issue. To put an end to this legal uncertainty, Advocate General Snijders recently instituted cassation in the interests of the law.
This claim for cassation in the interests of the law relates to the question whether the court in interim relief proceedings can pronounce an order to cooperate in a division of a community or to sell and deliver a community property with a view to dividing the community to which that property belongs.
Sometimes there is an urgent interest in such an order, for example, if parties who were in a relationship have separated, the communal home has become unaffordable for them but one of them does not want to cooperate in a sale.
Can an interim injunction instead of protracted proceedings on the merits provide the necessary outcome in such cases?
Order to sell not possible
In its judgment of 13 November 2018, the Court of Appeal of The Hague ruled that an order to sell and deliver a house belonging to a community is an act of partition or manner of distribution as referred to in Article 3:185 of the Civil Code, which does not lend itself to being granted as a provision in summary proceedings. In a judgment dated 26 November 2019, this court reiterated this opinion.
The Court of Appeal of Den Bosch seems to have followed this line. In a judgment of 7 September 2021, that court of appeal ruled that claims for cooperation in a division of a community of property and in the sale and delivery of a dwelling belonging thereto are based on Article 3:185 of the Dutch Civil Code and cannot be regarded as an order for interim relief. A judgment of that court dated 9 November 2021 contains a similar decision.
Order to sell possible
However, the line of the Court of Appeal of The Hague was explicitly rejected by the Court of Appeal of Arnhem-Leeuwarden in a judgment of 15 June 2021. According to this Court, the interim relief judge can always make a provision in the form of an order against one party in favour of the other. The court did not assess an order to cooperate in a house sale as determining the distribution but sees such an order as ordering the manner of distribution. The Amsterdam Court of Appeal followed this line of the Arnhem Court of Appeal.
cassation in the interest of the law
The literature pointed out the undesirability of the line emerging from the judgments of the courts of appeal of The Hague and Den Bosch. Proper legal protection in divisions implies that the aforementioned order in summary proceedings should be possible. Moreover, because the courts of appeal take different courses, there is legal diversity.
The judgments of the courts of The Hague and Den Bosch deter parties from commencing interlocutory proceedings. The attention of the Committee for cassation in the interest of the law has therefore been drawn to the present matter because there is a frequent need for clarity on this point, especially in the practice of family law.
The aforementioned judgment of the Court of Appeal of The Hague of 13 November 2018 was therefore submitted for cassation in the interest of the law.
Conclusion of the Advocate General
The Advocate General concludes that an order to cooperate in the sale of a property is possible in summary proceedings and recommends setting aside the Court of Appeal's judgment:
On the basis of the foregoing, I raise the following plea against the judgment of the court of appeal:
Infringement of the law, in particular of Articles 254(1) Rv, 3:182 or 3:185 of the Civil Code, in that the court of appeal ruled in paragraph 14, in summary, that an order by one of the partners on the demand of another partner to cooperate in the sale of property belonging to a community is an act of partition or a manner of distribution within the meaning of Art. 3:185 of the Civil Code which is not possible in summary proceedings, or (wholly or partly) puts a definitive end to the division and is therefore not possible in summary proceedings. This opinion is incorrect because (i) such an order is possible in preliminary relief proceedings, since an order can always be given in preliminary relief proceedings, thus also to cooperate in the division of a community (property), (ii) the manner of division as referred to in Art. 3:185 DCC may be determined in interim relief proceedings, in any case as part of an order to be pronounced by way of interim relief, and (iii) the order to cooperate in the sale of property belonging to a community of property and the determination of the manner of partition as referred to in Art. 3:185 DCC do not put an end to the partition and are possible in interim relief proceedings also for that reason."
We now await the Supreme Court's ruling!
Would you like to know more or do you have questions about starting summary proceedings or the division of a community of property? If so, please feel free to contact one of our lawyers without any obligation. We will be happy to assist you and keep you informed of further developments.