What are prenuptial agreements?
Prenuptial agreements are a notarial deed in which spouses make arrangements about their financial relationships during and after the marriage. By establishing prenuptial agreements, spouses deviate from the legal system of community of property. This can mean that a cold exclusion applies where there is no joint property at all, or that there is a limited community with specific agreements about which assets and debts are or are not shared. Prenuptial agreements are drawn up by a notary and must be registered in the matrimonial property register at the court to be valid against third parties.
The impact of prenuptial agreements in divorce
In a divorce, prenuptial agreements largely determine how assets are divided. Unlike a community of property where everything is shared in principle, with prenuptial agreements only those matters explicitly included in the deed are shared. This can mean each spouse retains their own assets after divorce. However, practice is often more complex. Many prenuptial agreements contain settlement clauses, periodic settlement clauses, or final settlement clauses, which can still lead to asset division. It is therefore crucial to have the exact contents of your prenuptial agreement carefully analyzed by a specialized lawyer.
Periodic settlement clause: the pitfall
Many prenuptial agreements contain a periodic settlement clause, meaning spouses must annually settle the difference between their incomes. In practice, this is almost never done. The Supreme Court has ruled that if a periodic settlement clause has not been followed, settlement must still occur upon divorce, covering all assets. This can mean that despite prenuptial agreements, all assets must be divided, similar to a community of property. This is a common pitfall many couples only discover during divorce.
Final settlement clause: still dividing at divorce
A final settlement clause only takes effect at the end of the marriage, through divorce or death. The most common final settlement clause stipulates that spouses must settle upon divorce as if they were married in community of property. This means that despite prenuptial agreements, assets are still divided equally. There are also final settlement clauses that only apply upon death, not divorce. It is important to read carefully which type of clause is in your prenuptial agreement and what the consequences are.
Cold exclusion: each keeps their own
With cold exclusion, there is no community of property and no settlement clause. This means each keeps their own assets and debts in divorce. In principle, nothing is divided. This can lead to unfair outcomes, especially when one partner did not work or worked less during the marriage to care for children. The court can in some cases award compensation based on reasonableness and fairness, but this is not automatic. Since 2018, new marriages without prenuptial agreements have a limited community, so cold exclusion only occurs with deliberately made prenuptial agreements.
Alimony and prenuptial agreements
Prenuptial agreements do not in principle affect the right to spousal alimony. Even if you married with prenuptial agreements, you may be entitled to alimony after divorce. Alimony is calculated based on need and capacity, not on the prenuptial agreements. However, prenuptial agreements may contain a non-modification clause regarding alimony, or a clause excluding spousal alimony. The validity of such clauses is limited and can be set aside by the court if it leads to an unfair result. Always have your prenuptial agreement reviewed by a divorce lawyer.
Modifying prenuptial agreements during marriage
It is possible to modify prenuptial agreements during the marriage via a notary. If you are considering divorce, it may be wise to first have the prenuptial agreements modified to achieve a fairer division. Note: changes shortly before divorce may be considered unreasonable, especially if one partner was not fully informed or pressured. It is always advisable to seek legal advice before modifying prenuptial agreements or starting divorce proceedings.
Need advice? Contact our specialists
Prenuptial agreements and divorce form a complex legal area. The consequences of your prenuptial agreements in divorce depend on the specific provisions in your deed, case law, and your personal circumstances. At Advocaat bij Scheiden, we have extensive experience analyzing prenuptial agreements and guiding divorces. We help you understand the consequences and ensure a fair outcome. Contact us today for a free introductory consultation.