Land Registry and the family home protective rules
If only one of the spouses acquires or sells real estate or concludes a mortgage agreement with regard to real estate that qualifies as the family home, then also the consent of the other spouse is needed to effectuate that transaction, even if they are not registered as the owner’s spouse in the land register. It is the responsibility of the notary to control whether consent has been given. Therefore, the land registrar does not carry out an independent control.
Other Overriding mandatory provisions in family law
Under the old Dutch law governing matrimonial property law, if one of the spouses acquired real estate before they got married, the real estate would in principle have been part of the matrimonial property. Under the current Dutch law (implemented as of 1 January 2018), the matrimonial property regime has been changed so that the real estate, acquired by the spouses before marriage, no longer form part of the matrimonial property. The current Dutch law does not have retroactive effect and thus solely apply to marriages concluded after 1st January 2018.
Pietro had inherited a house from his parents’ succession. He is registered in the land book as sole owner. After that, he marries Sofía and they establish their family home at that house, where they live with their two little children.
Now, Pietro has received a very interesting offer for the house from an Investing company called Paradise Rooms SA, so he decides to sell it. Pietro and the representative director of the company have signed the purchase contract before the notary and have sent it to the Land Registry to register the new owner.
As a preliminary remark, it is to be pointed out that the purchase contracts can only be registered in the form of a Vormerkung (provisional registration) (article 7:3 Dutch Civil Code). A subsequent deed of transfer would be registered in accordance with article 3:19 (1) Dutch Civil Code provided that all formal requirements are met.
Even though Pietro is registered as the sole owner of the family home, he would need the consent of his wife to transfer the family home to Paradise Rooms SA (article 1:88 (a) Dutch Civil Code).
Under the old Dutch law governing matrimonial property law, Pietro’s house would have been part of the matrimonial property unless Pietro`s parents had included an exclusion clause in their last will to exclude the house from the matrimonial property of their son. Under the current Dutch law (implemented as of 1 January 2018), Pietro’s house does not form part of the matrimonial property if he and Sofia got married after the 1st of January 2018. If they married before that date, the old Dutch legislation regarding this topic will apply. In that case it is important for Pietro`s parents they excluded the inheritance from being part of the matrimonial regime of their children in their last will.