Attention divorcing Aussies!

Suppose you are an Australian, now living in The Netherlands. While you were living in Australia, you got married. During your marriage, you received an inheritance following your parents’ death in Australia. You’re now facing divorce in The Netherlands. Do you have to share your inheritance with your ex?

Australian divorce in the Netherlands: applicable law

Even though you and your ex were married abroad, Dutch law could apply to the division of your assets and property. This may happen after living in The Netherlands for 10 years, or due to many other situations.

If Dutch law applies to you, then all properties and assets belong to a matrimonial community, which includes inheritances and gifts. This is sometimes referred to as being married “in community of property”.

If you were married after 1 January 2018, inheritances and gifts are excluded since the Dutch law changed on that date. But, for couples married earlier, a so-called exclusion clause is required to keep a gift or inheritance out of this marital community. Without this clause you have to share your inheritance with your ex.

Exclusion clause

An exclusion clause is a clause (in a will) which expressly states that  the inheritance will not fall into any marital community of property. This ensures that, for instance, an inheritance received during the marriage will not become part of any community of assets and property into which the heir(ess) is married.

This is a typically Dutch legal figure, so you may not often find exclusion clauses in contracts from other countries.

You can learn more about exclusion clauses in an earlier article I wrote for GMW lawyers about the division of international inheritances in the event that an exclusion clause is missing.

“For her own use and benefit absolutely”

In common law countries like Australia, a sentence like “for her own use and benefit only” is frequently used in wills. Is this considered to be an exclusion clause as required under Dutch law to prevent inheritances to fall into a marital community of assets and property?

The courts of appeal in Arnhem-Leeuwarden had to answer this question recently (ECLI:NL:GHARL:2018:3767) when a wife received an inheritance from her Australian uncle during her marriage. In this case, the uncle’s last will and testament contained the sentence mentioned above. First, the courts of appeal considered that the will should be interpreted according to Australian law (referring to international private law legislation laid down in EU-regulations and international treaties).

By deliberately adding this extra sentence in the will, the uncle expressed his wish to leave the inheritance solely to the wife. In Australia such a clause is not strictly necessary because inheritances by default stay out of any marital community, therefore the sentence is qualified as an exclusion clause. The result is that the wife doesn’t need to share her inheritance with her ex.

What can you do to make sure you don’t need to share your inheritance?

As an Australian facing divorce in the Netherlands, there are two ways to protect any future inheritance. The first is to go to a notary and make a prenuptial agreement in which you exclude gifts and inheritances from any marital community. The other option is to make sure that any future testators have an exclusion clause in their wills.

 

Do you need some help?

Dealing with the ins and outs of divorce as an expat can take some understanding. If you have any questions, or you’d like to discuss your particular situation, please don’t hesitate to contact me.