In the Netherlands, the parties may enter into a prenuptial agreement at the time of concluding their marriage (or during the marriage itself but in the latter case, the approval of the courts is required). They can thereby choose between one of three models described in the code, or regulate their property relations, with some limitations, as they wish. The prenuptial agreement must take the form of a notarial deed and be entered in a matrimonial property register. A civil notary does have an affirmative duty to inform the parties about the agreement and its potential consequences. Neglecting this duty can result in either disciplinary action or compensatory damages.
The Netherlands is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements. Since The Netherlands still has an absolute community of property regime upon marriage, whereby all property, whether acquired before or after marriage, automatically becomes communally owned by both spouses, it is often extremely important to consider a prenuptial agreement in this country. A common term of such a prenuptial agreement is to provide that all property will be separately owned except for the marital residence and its contents, which will be communally owned. Spouses do have a duty of disclosure of both assets and liabilities prior to entering into a prenuptial agreement.
Our office has worked on several U.S. – Netherlands prenuptial agreements, always collaborating with local counsel in all jurisdictions as appropriate.
Disclaimer: We are admitted to practice only in New York but work as appropriate with lawyers throughout all U.S. states and throughout the world.