Divorce and pension for employees of EPO/ESTECMarjet Groenleer
Do EPO/ESTEC employees have to share their pension with their ex-spouse if they divorce?
Employees of EPO/ESTEC are not liable for taxes in the Netherlands. They pay an internal tax. This means that the usual (software) programs for calculating spousal/child maintenance – based on the Dutch tax system – cannot be applied directly. A customized solution is required.
The usual social security arrangements such as the Unemployment Insurance Act (in Dutch: WW) and Invalidity Insurance Act (in Dutch: WIA) are not applicable to employees of the EPO/ESTEC. They also do not accrue the governmental Dutch pension (in Dutch: AOW) nor a regular Dutch pension via their Dutch employer. They have a separate pension scheme. That leads to the question whether an EPO/ESTEC pension should be treated in the same way as a regular Dutch pension in the event of a divorce.
Under the Equalization of Pension Rights Act (in Dutch: WVP), ex-spouses receive a half share of the old age pension rights that each accrued during the marriage. Dutch insurance companies are bound by the WVP. This means that when the insured party retires – which may be years after the divorce – the insurance company will pay out directly to the ex-spouse of the insured party. Thus, the ex-spouse of the insured party is no longer dependent of him/her.
Foreign insurance companies are not bound by the WVP. This means the ex-spouse of the insured party has no automatic right towards the foreign insurance company. Once the insured party retires, he/she is obliged to pay his/her ex-spouse the amount to which this ex-spouse is entitled (50% of the pension rights accrued during the marriage).
What if the insured party fails to do so? In that case a proceeding will need to be initiated by his/her ex-spouse. What if the retired party has moved abroad in the meantime? Then his/her ex-spouse must go through the foreign courts. The ex-spouse of the insured party does retain the claim to 50% of the pension rights accrued during the marriage, but is also liable for collection costs.
The EPO’s/ESTEC’s pension scheme is lodged with a foreign insurance company. A former spouse of an EPO employee asked the district court in The Hague to order her ex-husband to assign her pension rights, so that she could make an independent claim with the pension provider (in Dutch: cessie). She based this on the requirement for former spouses to behave fairly and reasonably towards each other and her expectation that her ex-husband would move abroad without paying her. The answer was negative (Rb. Den Haag, January 17 2018, ECLI:NL:RBDHA:2018:594). In this particular case the court found no reason to order the assignment.
The ex-wife retained her right to half of the old age pension accrued by her former husband during their marriage, but remains dependent of him. The considerations in the court order mentioned above raises the question whether the court might have reached a different conclusion in other circumstances. This judgment can be extended beyond EPO/ESTEC, since there are plenty of employees in the Netherlands who divorce but whose pension plans are based abroad. On the basis of this judgment, a transfer of pension rights is not an option for them either. The jurisprudence will need to make clear how widely the judgment of the district court in The Hague should be applied.