Marriage law reformed
Leon makes marriage safe
After 20 years, the matrimonial property law review procedure has finally been concluded.
Leon Verstappen, professor of notarial law at the RUG, worked on it for years.
The procedure started in 1997 as a result of a discussion in the Lower House about registered partnership, to which matrimonial property law applies.
For the third legislative proposal, Verstappen recruited several expert colleagues, including RUG professor Wouter Burgerhart. He focused on the fiscal aspect.
Legislative changes usually take several decades because they often concern charged issues and consensus is not easy to come by.
The legislative change means inheritances, gifts and a person’s private capital from before the marriage no longer fall under the community property.
Another important aspect of the new community property is that people will have better protection against creditors that are after the partner.
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Anyone who wants to shape the law needs to be patient. This has become clear during the review process for matrimonial property law, which required four legislative changes. For Leon Verstappen, professor of notarial law at the RUG, it was a moment of personal victory when the latest legislative proposal he had drawn up was accepted by the Upper House in late March.
‘It’s the culmination of 20 years of legislative work. It took so much time and effort. We did a lot of writing and there were many discussions, some quite heated. The fact that this fourth law has been accepted is really nice’, says Verstappen happily.
According to the notarial law professor, the fourth and final law was the most controversial one. The question was which law applies when people marry without a prenuptial agreement, what partners share, and what remains private property. ‘We saved this topic for last because people can have varied opinions on it. Eventually we were able to write a proposal that received the approval of a parliamentary majority.’
For Verstappen, the story starts in 1997 when legislation concerning registered partnerships was being discussed in the Lower House. ‘They wanted to offer an alternative to people who couldn’t or wouldn’t marry. Back then, gay marriage was not yet an option. Because of the legislation concerning registered partnership, the Lower House pressed for a review of matrimonial property law because it also applied to register partnerships’, the professor of notarial law explains.
The Ministry of Justice tasked him with writing three draft laws and their explanations. It was a great honour for Verstappen. ‘If you’re offered an assignment like that, it’s impossible to say no. It’s a unique chance, one that doesn’t come along very often. When scientific research is being assessed, people take into account societal impact. For a lawyer, there is no greater impact than writing an actual law.’
But making laws is not something one does alone. Right from the start, public servants were looking over his shoulder, working on the law with him. When Verstappen was asked to design the last legislative proposal, he recruited several other experts to broaden the support base.
‘Such a complicated subject requires other specialities. The fiscal angle in particular was very important.’ Wouter Burgerhart, professor by special appointment of fiscal aspects of notarial law practices at the RUG, tackled all the fiscal matters.
Designing a law is more than just writing the words: it also involves consulting, discussing, researching, writing notes, doing comparative law studies, and drawing up reports. In fact, these are the most important aspects of a law review process. ‘Eventually you have to take that mountain of information and come up with something to write that you think will remain useful for the country for decades to come’, says Verstappen.
It is not unusual for law review processes about complicated subjects to take multiple decades. ‘The revision of inheritance law, which was introduced in early 2003, took 50 years. They are emotionally charged subjects that are linked to how people view life. Often, it’s really difficult to reach consensus about these kinds of subjects’, Verstappen explains.
The review procedure for the matrimonial property law was not without its struggles, either. The matters set down in the fourth legislative proposal had already been included in the third proposal. ‘But the Lower House buried it in amendments. That left nothing but the bare bones of the proposal without the most important part. That made me quite sad, especially because I doubted whether it had been done for the right reasons.’ This legislative change took effect early in January of 2012.
Verstappen was extremely happy when in that same year, he was approached by D66 and later the Labour Party and VVD to see if the part that had been amended out could be put back on the agenda.
‘That was really special. Suddenly the Lower House parties said: we’re actually not that happy with our own decision’, the professor says. And although this particular twist turned out well for Verstappen, he realises that the end result will always be a compromise. ‘It’s absolutely impossible to design your own perfect law. After all, the legislative change has to get a majority of votes in the Lower House.’
And then they have to take into account legal feasibility and practically usability. ‘All in all, after many discussions, we got a good feel for what society needs. How it works in practice will determine how it’s received. The new law will probably take effect on 1 January, 2018.’
How will matrimonial property law change?
The current rules (before the legislative change takes effect) say that when two people marry without a prenuptial agreement, that creates a community of property regime. Any and all existing and future possessions and debts of both partners become part of their joint property (the community). Gifts and inheritances to one of the spouses before and during the marriage also fall under that community of property regime.
In the case of divorce, this community property is divided, and each spouse has the right to half of it. Under the new rules, partners are still marrying in community of property if they do not have any prenuptial agreements.
But the big difference is that inheritances, gifts, and a person’s private property from before the marriage no longer fall under community property. Only the income, possessions, and debts that the spouses earn or incur during the marriage become part of community property, including all premarital co-owned property and joint debts.
This means people will have to share less in case of a divorce, but it does mean that they must share what they built together. This is the essence of this legislative proposal.
Another important aspect of this new community of property regime is that people are better protected from creditors who are going after their partner. Because debt incurred before the marriage is no longer part of community property under the new law, creditors can no longer go to their partner for that.