Most Dutch marriages are still based on community of property. But who pays the lawyers’ costs in the event of a divorce? Does this come under the marital estate or do the spouses pay their own costs?
Community of matrimonial property
If community of property applies to your marriage, all your assets and debts as well as those of your partner are jointly owned. As soon as an application for divorce has been lodged with the courts, this community ceases to exist. From then on each partner is responsible for their own affairs again. It may be that some time elapses between the moment you decide to separate and the moment that the application for divorce is filed with the court. If you need a lawyer during this interim period, it raises the question of who is liable for the legal bills.
Legal costs during divorce proceedings
Usually in a divorce case, each partner pays their own legal expenses, or to put it better, the costs of the legal proceedings are reimbursed. Legal bills pertaining to the period after the community of property has been dissolved are no longer included in the community because it no longer exists. Each partner therefore has to meet their own costs, but what about the costs relating to the period before the community was dissolved?
Supreme Court judgment: should legal costs be included in the community of property?
The Supreme Court recently issued an interesting judgment concerning the payment of legal costs for dissolving the community of property. The Court of Appeal had ruled that these costs formed part of the community because the community still existed when they were incurred. But in the Supreme Court’s opinion this was too simplistic. Even where a 50/50 division of these costs is a big stretch, exceptions are only occasionally made in extremely unusual situations. On the other hand, exceptions to the general rule that the costs of bringing legal proceedings should be recuperated are rarely made either. Unsurprisingly, these two fundamental principles are often at odds with each other.
It remains unclear what the rule will be from now on. All the Supreme Court’s judgment means is that the Court of Appeal did not substantiate its decision sufficiently and the case has been referred to another appeal court for a final judgment that will take the Supreme Court’s point of view into account. As long as there is no general rule for the situation described above, it will be left to the judge to decide whether the legal expenses submitted to him or her are reasonable. So for the time being it is not clear whether or not you will have to foot the bill for your ex-partner’s legal expenses.
Marjet Groenleer is an attorney-at-law and associate partner at GMW lawyers in The Hague. She has been active in family law for more than 15 years, focused on on (international) divorces. Marjet is a trained divorce mediator with the vFAS (Dutch Association of Family mediators and lawyers).
Marjet has a particular interest and a profound knowledge of the international aspects of family law. She is an expert in dealing with complex financial and multi-jurisdictional cases of an international family breakdown. Because of her experience and previous jobs, she is familiar with several foreign legal systems. A great number of her clients are expats. She understands the needs of expats working for the various international organisations and companies based in The Netherlands, specifically in the area of The Hague (lsuch as EPO, Estec, OPCW, NATO, the tribunals, ICC, Shell, etc.)
Marjet worked as a lecturer in International Civil Law for several years and at the Court of Appeals in The Hague in the family law sector. Today, she is a deputy judge in the Court of Appeals in Amsterdam. Marjet publishes regularly in professional journals and keeps you informed of the various complex aspects of (international) divorces with her weblogs.