Estate planning

I am getting married and I would like to obtain advice on a prenuptial agreement

In the Netherlands a prenuptial agreement is drawn up by a civil-law notary. You are not obliged to have your own advisor. A prenuptial agreement has binding effect, which means that in the event of a divorce the Dutch courts will treat the prenuptial agreement as a given. In that case the matrimonial property will be divided or settled in accordance with the agreements made by you together with your ex-partner in the prenuptial agreement. It is only in very exceptional situations that the prenuptial agreement will be set aside. To do so it is required that there was a so-called 'vitiated consent' when the prenuptial agreement was concluded, which is, for instance, the case if one of both parties was pressured into signing the prenuptial agreement.

For that prenuptial agreement to be valid abroad it is not always sufficient that the prenuptial agreement has been drawn up only by a Dutch civil-law notary and that this notary has given advice about the prenuptial agreement to both parties together. Nor is it self-evident that a prenuptial agreement has binding effect abroad. For instance, many Anglo-Saxon countries stipulate as a condition that, prior to entering into a prenuptial agreement, the financial state of affairs must be fully disclosed, or that the parties must be given the opportunity to do so. And each of the parties must have been given independent legal advice before entering          into their prenuptial agreement and, besides, often a time limit is set within which the prenuptial agreement is to be drawn up, for instance that a prenuptial agreement must be agreed on no later than 30 days before the solemnization of the marriage.

 If you are considering to go and live abroad after the marriage, or are you living abroad at the time the marriage was concluded, it is recommended to take account as far as possible of the requirements which are set as regards the validity of a prenuptial agreement in the country of your (future) place of residence, even if you have made a Dutch prenuptial agreement. Obtaining independent advice is always a good idea, but in case of an international living and working environment it is in fact a must. It is not possible to give any guarantees in advance, but what you can do is to try and make your prenuptial agreement acceptable abroad, by which   chances are increased that the property will be settled in accordance with the agreements made in the prenuptial agreement made by you with your partner. We    can assist you as independent advisors in drawing up the prenuptial agreement.

I have a prenuptial agreement from a foreign country. Is such an agreement valid in the Netherlands?

It depends on the manner in which the prenuptial agreement has been concluded. In principle, the courts in the Netherlands assume that if the prenuptial agreement complies with the statutory requirements of the country where it has been drawn up, and if the agreement has been drawn up in written form and signed by both parties, the prenuptial agreement will be valid. 
In that case the Dutch courts will take the agreements made in the prenuptial agreement as a basis when the property is settled  upon divorce.

In the living and working environment it is, for instance, not always clear to your landlord or a business partner that a prenuptial agreement has been made. Therefore, Dutch prenuptial agreements are listed in the Matrimonial property register, which can also be consulted by third parties. If you got married abroad and if you have made a prenuptial agreement there, it will not be clear to your landlord or business partner in the Netherlands that you have done so. Pursuant to the law, your landlord or business partner may in that case assume that you are married under the Dutch legal system, the community property regime ( as from 1 January 2018 the limited community of property regime). You can avoid this by having a Dutch civil-law notary draw up an abridged deed containing matrimonial terms in which it is determined that you have made a prenuptial agreement in another country and that for that reason Dutch law does not apply to your matrimonial property regime. The civil-law notary will list this abridged deed containing matrimonial terms in the Matrimonial property register and as a result third parties may no longer automatically assume that you are married in community of property.

I pay tax abroad, but I am living in the Netherlands. Do I have to pay tax here as well?

If you receive interest, royalties or dividend from another country, taxes will often be withheld when interest, royalties or dividend is paid out. This is referred to as tax levied at source.

The Netherlands has entered into a treaty with some countries about which country is allowed to levy tax. If you receive income from a country with which the Netherlands has entered into such a treaty, you may be entitled to (partial) exemption from or refund of tax withheld or to be withheld. It depends on the agreements made in the tax treaty in question. We can advise you regarding this.

/ Any questions about Estate Planning? Please contact

Ivo (I.J.) Janssens

Ivo (I.J.) Janssens

Lawyer / tax advisor / partner

Sandra (S.L.A.) Verburgt

Sandra (S.L.A.) Verburgt

Lawyer / partner

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