Getting married is a special event full of love and devotion. However, it is important to remain practical and to arrange certain things properly before you tie the knot. Prenuptial agreements help you start your future with peace of mind by making agreements about assets and debts. In this article we explain what prenuptial agreements are, why and when you should draw them up, and how they can have an influence during and after your marriage.
What are prenuptial agreements?
Prenuptial agreements are agreements between future spouses regarding the division of assets, debts and other financial matters during the marriage and in the event of a divorce. These agreements are recorded in a notarial deed and aim to provide clarity about the rights and obligations of both partners.
With a prenuptial agreement you decide what belongs to whom and how financial matters are arranged. For example, this can provide protection if one of you has your own business, or to keep property and debt separate.
What exactly do you arrange with a prenuptial agreement?
In prenuptial agreements (or partnership conditions) you make concrete agreements together about who has what assets and debts during the marriage or registered partnership. For example, you record:
- What remains private property and what becomes common
- How income and expenses are divided
- How to deal with assets, gifts or inheritances
- What happens to assets and debts when you separate
You always draw up these agreements with a notary, so that everything is officially and legally recorded. This way you avoid ambiguities and unpleasant surprises, now and in the future.
Make agreements about assets in the event of death
A frequently asked question is whether you can also make arrangements in the prenuptial agreement in the event that one of you dies. The answer is: yes, that is certainly possible. For example, you can determine what happens to joint or personal assets upon death, even if you opt for 'cold exclusion' – where all assets and debts remain strictly separated during the marriage.
With a smart provision in the prenuptial agreement, you can agree that in the event of death, all or part of the assets will benefit the surviving partner. The part that belongs to the deceased then goes to his heirs via the legal route, unless you choose to deviate from this. You can make clear agreements about this together, for example in combination with a will.
This provides peace and clarity for both partners – not only during the marriage, but also for the settlement afterwards.
What is cold exclusion?
'Cold exclusion' is a specific form of prenuptial agreement in which all assets and income remain strictly separated. In fact, everything that was yours before and during the marriage remains entirely yours – and that includes your partner. So nothing is shared: not your savings, not your house, nor any debts. Each person keeps their own assets, without building up joint assets.
This system may sound a bit businesslike, but it can actually provide clarity, for example if one of you runs a business risk or wants to protect private assets. It is important to know that with cold foreclosure, even income during the marriage is not shared. This provides extra clarity, but it also means that partners are completely financially independent.
Why and when to get married with a prenuptial agreement?
Before 2018, the standard in the Netherlands was that marriages were concluded in full community of property, with all assets and debts becoming joint. Since January 1, 2018, the limited community of property applies, whereby only the assets and debts that arise during the marriage are shared. Assets and debts from before the marriage remain personal.
Different forms of prenuptial agreements
With a prenuptial agreement you can make your own agreements about how your assets and debts are divided. There are various options, such as:
- Community of goods: You choose to share (almost) everything together, just as was customary before 2018.
- Cold exclusion: Everything remains strictly separated; everyone retains his or her own assets, income and any debts.
- Custom-made agreements: You can make all kinds of agreements in between, for example about the division of the home, income, dealing with your own company, pension, or how inheritances and donations are treated.
By determining together what belongs to whom, you avoid ambiguities and you can take personal situations into account, such as having your own business or protecting family capital.
However, it may be wise to draw up a prenuptial agreement, for example in the following situations:
- Protection of your own business: Prenuptial agreements can ensure that one partner's business remains outside the community of property.
- Limiting financial risks: This prevents debts of one partner from influencing the assets of the other.
- Inheritances or donations: You can determine that inheritances and donations remain private assets, even after the marriage.
- Asset division in the event of divorce: Prenuptial agreements provide clear guidance for the division of assets and debts in the event of a divorce.
Draw up prenuptial agreements (also after marriage)
Prenuptial agreements are drawn up before the marriage, but can also be agreed during the marriage. For this, both partners must go to a notary. Existing prenuptial agreements can also be adjusted. This can be important, for example, if the financial situation changes, such as at the start of a business or in the event of an expected inheritance.
When do new or amended prenuptial agreements come into effect?
The new or amended prenuptial agreement will take effect as soon as you have signed the deed at the notary. From that moment on, the agreements made are legally valid and in force. In some cases, for example if you have been married for less than three years and it is the first time that you have drawn up a prenuptial agreement, you can agree with the notary that the agreements apply retroactively from the date of your marriage. So always discuss with the notary what options are available in your situation.
Adjust prenuptial agreement
It is possible to adjust the conditions during the marriage. This can be useful if circumstances change, such as starting your own business or a different financial situation. This again requires a notarial deed in which the changed agreements are recorded.
Several liability in the event of adjustment of prenuptial agreements
Many couples wonder whether they will remain jointly and severally liable for joint debts if they change their prenuptial agreement, for example if a debt is now only in one name. The answer is that joint and several liability generally continues to exist for debts entered into jointly, even if on paper they are allocated to one partner.
This means that the creditor may claim both partners for the full amount, regardless of the new agreements in the prenuptial agreement. If one of the partners ultimately pays off the debt in full, while according to the terms and conditions the other was responsible for this, the person who paid too much can reclaim that amount from the other partner. If there is a discussion about this, the judge can be asked for a decision.
Always get good advice about this from a notary, so that you know exactly what the consequences are of adjusting the prenuptial agreement for your personal situation.
What are the costs of a prenuptial agreement?
The costs for drawing up a prenuptial agreement vary depending on the notary or mediator you choose. On average, the costs for prenuptial agreements with a notary start at around €950, including registration in the marital property register. If you opt for premarital mediation, where you draw up the conditions together with a mediator, the costs can vary between €350 and €800 (excluding VAT). In addition to this there are the notary costs to record the deed.
Marital conditions in case of divorce
If you decide to divorce and have a prenuptial agreement, the assets and debts will be divided according to the agreements in those conditions. This provides more clarity and can prevent lengthy and complicated divorce procedures. However, some matters may still cause discussion, for example if not all scenarios are described clearly enough.
Exception for less than three years of marriage
Have you been married for less than three years and do you want to draw up a prenuptial agreement (for the first time)? In some cases, these conditions may apply retroactively from the date of the marriage. To achieve this, you must make clear agreements together and record them with the notary. This can be useful if you decide to arrange matters formally later, but want the agreements to be in effect from the start of your marriage.
Please note: this is not always automatically the case, some situations require extra attention or permission. It is therefore wise to seek legal advice in a timely manner, so that you know for sure where you stand.
Putting joint debt in the name of one person: is that possible?
Suppose you want to transfer a jointly incurred debt into the name of one partner after drawing up a prenuptial agreement. Is that just possible? In practice, this often turns out to be more difficult than expected.
For most debts, such as a joint loan or mortgage, you are both jointly and severally liable. This means that the bank or other creditor can always contact both partners for the full amount, regardless of what has been agreed in your prenuptial agreement. Even if you decide by mutual agreement that one of the partners will take on the debt alone from now on, the creditor still retains the right to sue both.
If the partner who would no longer be responsible according to the prenuptial agreement then pays, a right of recourse usually arises. This means that this partner can reclaim the amount paid from the other partner. If the other partner does not cooperate, you can possibly go to court. In such a situation, always consult with a notary about how best to approach this to avoid further conflicts.
It is therefore wise to discuss joint debts in advance whether and how you can split them, and to make clear agreements about the division of these obligations. This way you both know where you stand in the event of a divorce or change in conditions.
What are you not allowed to agree in a prenuptial agreement?
Although you have a lot of freedom in drawing up prenuptial agreements, there are certain agreements that are not legally permitted. It is also important to know that the law does not allow
partner alimony to be excluded in prenuptial agreements. Spousal maintenance must therefore still be calculated in the event of a divorce, unless the recipient waives this.
Furthermore, prenuptial agreements may not conflict with the law or good morals. For example, you cannot make agreements that aim to disadvantage one of the partners, or agreements that oblige either partner to relinquish fundamental rights. Consider agreements where you agree not to pay child support, or arrange matters that completely sideline the legal division of pension rights—this is also not permitted.
In short: the notary or mediator will check whether your agreements are legally valid, but it is good to know in advance what limits the law sets for prenuptial agreements.
What if no agreements have been made about the division of assets in the event of a divorce?
Have you not made clear agreements in the prenuptial agreement about how the assets should be divided in the event of a divorce? This will then have to be discussed and recorded together. This often happens during the preparation of the divorce agreement. If certain matters remain unclear or differences of opinion arise, negotiations may still have to take place or the judge may have to make a decision about the division. It is therefore wise to include as many scenarios as possible in the prenuptial agreement in advance, so that discussions - and additional legal costs - are avoided as much as possible.
What happens to prenuptial agreements in the event of death?
Prenuptial agreements not only play a role in divorce, but are also important when one of the partners dies. In principle, the marriage ends at the time of death, and the original agreements in the prenuptial agreement therefore expire. However, you can include special arrangements for this situation in the conditions.
In the case of so-called cold exclusion (where the assets remain strictly separated), partners often choose to agree that the assets will still be divided equally in the event of death. This means that the deceased partner's assets are distributed according to the agreements, usually with the heirs as beneficiaries.
It is therefore wise to consider the consequences of death not only when drawing up prenuptial agreements, but also when drawing up a will. This way you avoid unpleasant surprises and you can be sure that your wishes are well defined.
What if your ex-partner does not cooperate in repaying a joint debt?
Do you have a debt together, but your ex-partner refuses to pay? Then, as joint and several debtor, you both remain responsible to the creditor. This means that the bank or other lender may claim the entire outstanding amount from each of you separately - even if you have mutually agreed that one of you will pay the debt.
If you were forced to pay the full amount, while your ex-partner was (partly) liable according to the prenuptial agreement, you can reclaim this amount from your ex. Does your ex not want to cooperate in a fair division? Then you can go to court to reclaim your share. It is wise to first seek advice about this from a specialized notary or lawyer. This way you know for sure which steps are best to take in your specific situation.
Arranging prenuptial agreements with a personal approach
More and more couples are choosing to draw up prenuptial agreements through a premarital mediator. The future of your marriage is discussed in detail and personal agreements are made tailor-made. By hiring a mediator, you can determine your financial and practical matters in a constructive manner, so that the prenuptial agreement is fully tailored to your wishes.
At
Arslan Lawyers we offer expert guidance in drawing up prenuptial agreements. Whether you want advice before the marriage or want to adjust conditions during the marriage, our family law lawyers are ready to help you. Please feel free to contact us for more information and advice.
