Ndarja e shtëpisë martesore në një divorc holandez

Dividing the marital home in a Dutch divorce turns on three separate questions: what share each spouse owns, what the house is worth on the day it is actually divided, and who carries the mortgage afterwards. The first is answered by your matrimonial property regime, the second by the moment of division rather than the moment you separated, and the third by the bank, which is not bound by anything you and your former partner agree between yourselves.

Which property regime decides your share

Everything starts with how you married. For marriages concluded before 1 January 2018 without a notarial agreement, the default was the universal community of property (algehele gemeenschap van goederen): the house fell into the joint estate whoever was named on the deed, and so did the mortgage debt. For marriages concluded on or after that date the default is the bashkësi e kufizuar prone under art. 1:94 BW, in which each spouse keeps what they brought in. A flat one spouse owned alone before the wedding therefore stays that spouse’s private property, and the other acquires no share in it merely by marrying. The same rules apply to a registered partnership, because art. 1:80b BW declares the relevant provisions correspondingly applicable.

There is an important qualification for couples who bought together before marrying. Property the spouses already owned bashkë falls into the limited community, so a flat bought as an unmarried couple becomes part of the joint estate on the wedding day. Where one of them had put in more than the other, the Supreme Court held on 21 March 2025 (Hoge Raad, ECLI:NL:HR:2025:436) that the debt reflecting that shift in wealth does not itself fall into the community, so the larger contribution is not halved. If you paid the whole deposit on a flat you bought together before the wedding, that judgment is the reason to raise it.

Where the house is in the community, art. 1:100 BW gives the spouses equal shares in the dissolved community, unless a prenuptial agreement or an agreement made in writing in view of the impending dissolution provides otherwise. Under a prenuptial agreement the deed and the agreement decide, and a periodic settlement clause that was never actually operated during the marriage can still produce a claim on the house under art. 1:141 BW.

The dissolution date and the valuation date are not the same day

Two dates matter and they are routinely confused. The community is dissolved by operation of law when the divorce petition is filed, not when the decree is granted or entered in the register (art. 1:99 BW). That date fixes Çfarë belongs to the joint estate: income earned and debts incurred after it are private.

What the house is vlerë is a different question, and the settled rule is that the valuation date is the moment of the actual division, unless the spouses have agreed another date or reasonableness and fairness require one. In a market that moves, this decides real money: a rise between separation and transfer is shared, and so is a fall. Because divorce proceedings often run for a year or more, the sensible step is to fix the valuation date expressly in the divorce covenant (konventë e echtscheidings) rather than to leave it to be argued about later.

Three ways to deal with the house

There are only three outcomes. One spouse is allotted the property and buys the other out (toedeling). The house is sold to a third party and the net proceeds are divided. Or the spouses stay joint owners for a while, which is workable only as a deliberate, documented interim arrangement, because neither of them is released from the mortgage and either can demand division at any time under art. 3:178 BW.

The choice is usually made for the couple by two constraints rather than by preference: whether one of them can carry the mortgage alone on the bank’s terms, and whether the house is worth more or less than the debt on it.

The buyout: what the departing spouse is actually paid

The starting figure is the surplus value (i tepërt): the market value of the property at the valuation date, less the mortgage debt outstanding at that moment. In a community of property each spouse is entitled to half of it, and the spouse who keeps the house pays the other half in cash or by taking on a larger loan.

That figure is then adjusted, and the adjustments are where the disputes sit. Reimbursement claims for private money invested in the house come off first. So do any linked savings or investment policies, an endowment mortgage or a bank savings account, which are assets of the community in their own right and are not automatically netted against the debt. Where one spouse has continued to pay the whole mortgage since the separation, that is settled between them as well, usually against the reasonable use fee the occupying spouse owes for the other’s share. Agree the method before the appraisal, not after it.

The bank decides whether a buyout can happen

Both spouses are jointly and severally liable (hoofdelijk aansprakelijk) for the whole mortgage debt, and a divorce changes nothing about that. The departing spouse is released only if the lender grants a discharge from joint and several liability (ontslag uit hoofdelijke aansprakelijkheid), and the lender will grant it only if the remaining spouse passes its affordability test on a single income, under the lending rules in force at that time. Where the loan carries a national mortgage guarantee, the guarantor’s conditions apply on top.

Two practical consequences follow. Never sign a covenant that simply assumes the discharge will be given; make the allotment conditional on it, with a fixed period and an agreed fallback that the property is sold if the discharge is refused. And until the discharge is actually granted and the deed executed, the departing spouse remains fully liable to the bank for arrears, whatever the covenant says — a missed payment is registered against both names.

Private money put into a joint house

If you funded the deposit, the repayment of the mortgage or a renovation from money that was yours alone — an inheritance or gift with an exclusion clause, or property you owned before a post-2018 marriage — you have a reimbursement claim (vergoedingsrecht) against the community. Since 1 January 2012 art. 1:87 BW measures that claim by the investment doctrine (beleggingleer): the claim tracks the value of the asset in proportion to what you put in, so it rises if the house has risen and falls if it has fallen. For investments made before that date the older, nominal approach may still govern, and the spouses may also have agreed something different.

The burden of proof is on the spouse making the claim, and it is where these claims are lost. What is needed is a paper trail: the deed of gift or the will containing the exclusion clause, the bank record of the transfer, the purchase price or the invoice for the work, and the date. A recollection that the money came from your parents will not carry the point ten years later.

When the house is worth less than the mortgage

Negative equity is divided in the same way as surplus value: in a community of property the residual debt (restschuld) is shared equally, and the spouse who takes the house on takes the whole debt with it, usually without any buyout payment and sometimes with a payment in the other direction. Where the loan carries a national mortgage guarantee and the sale is forced by the divorce, the guarantee scheme may absorb part of the residual debt on its own conditions, which is a reason to involve the lender early rather than to sell first and ask afterwards.

When the equal split can be departed from

Rarely, and not for the reasons people expect. Art. 1:100 BW gives equal shares, and the Supreme Court has held that a departure on grounds of reasonableness and fairness is reserved for highly exceptional circumstances; that one spouse earned more, paid more, or behaved badly during the marriage is not enough. The route that does work is narrower and statutory: a spouse who deliberately conceals, hides or misappropriates an asset of the community forfeits their share in that asset to the other under art. 3:194 lid 2 BW. Undisclosed accounts and undeclared savings are what that provision is for.

If your former partner will not cooperate

Joint ownership does not mean deadlock. Any co-owner may demand division at any time, and where the parties cannot agree the court determines the division itself under art. 3:185 BW, including by ordering that the property be sold and the proceeds divided. Where a sale is needed and one spouse obstructs it, the court can authorise the other to sell the property alone under art. 3:174 BW, and in urgent cases that authorisation can be sought in summary proceedings. A spouse who refuses viewings or blocks a reasonable offer risks bearing the cost of the delay.

Living in the house while the divorce runs

During the proceedings the court can grant one spouse the exclusive use of the marital home as a provisional measure under art. 822 Rv, most often the parent with whom the children mainly live. After the divorce has been entered in the register of civil status, art. 1:165 BW allows the spouse who was living there to continue doing so for six months, whoever owns the property. The occupying spouse normally owes the other a reasonable use fee (përkthim i gabuar) for being excluded from their own share, which is commonly set off against the mortgage payments. Our separate article on who stays in the family home sets out how that right is applied.

Tax and mortgage interest relief

Two points are worth flagging, both of which belong with a tax adviser rather than in the covenant’s legal clauses. Allotting the marital home in the division of a matrimonial community between spouses is exempt from property transfer tax, so a buyout does not trigger a charge that a normal purchase would. And the spouse who moves out keeps the interest deduction on the former home for a limited period after leaving — currently two years under the Income Tax Act — after which it ends, while the rules on reinvesting surplus value affect the deduction on the next house. Have the figures checked before the covenant is signed: the tax position often changes what a fair split looks like.

What to settle first

Establish which regime governs your marriage and whether the house is in it at all. Fix the valuation date in writing. Have the property valued by an appraiser both of you appoint, and agree in advance that the report binds you. Ask the lender, before anything else is agreed, whether it will grant the discharge and on what income. And collect the evidence for any private money you put into the house while the documents are still findable.

Law & More advises Dutch and international clients from Eindhoven Amsterdam on the property side of a divorce. Our e drejta familjare team works with a avokat divorci on the covenant, the buyout and the discharge from the mortgage, and litigates the division where agreement is out of reach.

Pyetje të shpeshta: Ndarja e shtëpisë në rast divorci