Registering rights derived from acts between spouses

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Would the Land Registry make changes in ownership’s entry (proprietorship) on the bases of acts performed between the spouses?

The land register can be altered on the basis of a number of other acts performed between the spouses. To begin with, it is possible to register prenuptial agreements in the land register, provided that they are laid down in a notarial deed. In most marital cases partners however do not sign a prenuptial agreement with regard to their matrimonial property regime.

Furthermore, a distinction must be made between acts carried out by one of the spouses and acts that are jointly carried out by the spouses. If only one of the spouses acquires real estate or sells real estate/concludes a mortgage agreement with regard to real estate that they are the sole owner of, then in principle only that spouse will be registered in the land register. If only one of the spouses is involved in such a transaction, then their spouse will only be registered in the land register as being the spouse if this marital status is mentioned in the deed. It is however not mandatory to include the spouse’s name in the deed. Consent of the other spouse is only needed if the real estate transaction concerns their family home. Furthermore, the distribution of matrimonial property as a result of a divorce/dissolution of a registered partnership can be registered in the land register. This can be achieved by two means: either by an agreement between the spouses, which has to be laid down in a notarial deed or by a court decision.

Notarial deeds must be drawn up by a Dutch notary. Equally, court decisions that effectuate the distribution of the assets as a result of a divorce, must be produced by a court in the Netherlands. A court decision can be registered directly in the land register without mandatory intervention of a notary. It is required that the court decision has either acquired the force of res judicata or is executable with immediate effect. In the latter case it is also required that a period of time as determined in the court decision has passed since the service of process. The documents offered for registration must include information about the civil status of the parties at the time of the transaction. The land register does not contain information about the matrimonial property regime. Therefore, it is not required to include that piece of information in the documents. It is the task of the notary to identify the applicable matrimonial property regime and its consequences for the transaction.

Practical case 1

Paul and Mary married and they both own jointly an immovable property registered as such in your land book. Following a divorced between them, the property will become of exclusive ownership of Mary;

a) by means of the Court decision,
b) by an agreement between spouses in order the liquidation of their common assets.

Under Dutch law, it is not mandatory to register the court decision/agreement but it is possible to do so (Article 3:17 Dutch Civil Code).

Option a)
A court decision can be registered directly in the land register without mandatory intervention of a notary (articles 3:17 (e) and 3:301 Dutch Civil Code and article 25 Cadastre Act). It is required that the court decision has either acquired the force of res judicata or is executable with immediate effect. In the latter case it is also required that a period of time as determined in the court decision has passed since the service of process and the court decision has to be delivered by the judicial officer to the convicted partner (3:301 Dutch Civil Code).

Option b)
An agreement between the spouses has to be laid down in a notarial deed (articles 1:115 (1) and 3:190-191 Dutch Civil Code). It can be registered in the land register on the basis of article 3:17 Dutch Civil Code.

Practical case 2

Paul is the registered owner of an immovable property acquired by succession. Sometime after his registration, Paul marries Mary and decides that the property will be in the common ownership of both spouses, so they perform the transmission act by a matrimonial property agreement according to the applicable law.

It is not mandatory to register the entitlement of Mary in the land register but it is possible to do so on the basis of article 3:17 Dutch Civil Code. There are two options.

1. If Paul would like to update his civil status, he can ask a notary to submit a notarial declaration (articles 26 and 37 Cadastre Act) for registration.
2. If Paul would like to transfer half of the estate to Mary then the notary will have to draw up a deed of transfer (article 3:89 BW).

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