Don’t get caught out! Understand divorce and your Marital Property Regime

Van Hilten Advocaten & Mediators (previously Van Hilten de Vries van Ruitenbeek) specialises in (inter)national family law.

As of January 1, 2017, the firm is expanding under its new name to two locations in The Hague and Amsterdam. Margreet Ruijgrok also joins as partner.

This article explores the implications of an expat career on the Marital Property Regime (MPR) between divorcing spouses.

Do you understand your prenup or MPR?

While Dutch people often do not know the contents of their prenuptial agreement (or what they are legally entitled to, if they have no prenup), expats often don’t even know which law applies to their Marital Property Regime (MPR), especially if they have not drawn up a prenup.

This year, my firm has decided to promote awareness about the ambiguous issue of the Marital Property Regime.

We have chosen to do so this autumn, as a follow-up to D-Day (Divorce Day) which is organised every year in September by the Dutch Association of Family Lawyers and Divorce Mediators (vFAS).

Raising awareness about divorce and MPRs

Years ago, the vFAS already referred to divorce as a social phenomenon, and focused on the need to create awareness on how to handle one.

Specifically, the vFAS focusses on how to avoid a high-conflict divorce and, if possible, pursue a divorce settlement and parenting plan.

In general, the best thing to aim for in a divorce is a settlement - at least from a professional point of view. By professional point of view, I mean professionals such GPs, schoolteachers, psychologists and of course, good family lawyers, as the impact of a divorce can be huge on both a micro and macro level.

50 ways to leave your lover, and to divorce?

Having some expat experience myself, I am aware of the pleasures of the privileged expat life, which include all kinds of allowances and tax breaks.

As a family lawyer, however, I also know that expat families are often not aware of the challenges that accompany a high-pressure international career. The Dutch Bureau of Statistics states that one in three marriages ends in divorce, and we have observed that the rate is even higher in expat relationships.

That’s why it’s imperative for expats to be aware of the several ways to end a marriage or, at least, that they have access to relevant information.

It is especially important for expats to understand the implications of their career on their MPR, preferably before they become caught up in a divorce.

The complexity of MPRs: Some examples

Some international marriages are so complex that it’s difficult to know which marital laws would apply in the case of divorce. Some examples include:

› Newlyweds in Dubai

What would you make of the Dutch/Swedish couple who married in Amsterdam without a prenup, just before moving to Dubai - their first matrimonial domicile - then Mongolia, then back to Amsterdam (at least the Dutch wife)?

› Constant company transfers

Or the Russian/British couple who married, without entering into a prenup, in a lovely chapel on Cyprus, after which the husband was transferred to Nigeria, followed by Houston and only recently The Hague, where the whole family now resides?

› A New York apartment

Or the American/Dutch couple who always lived in Wassenaar, but who married in New York, where the American wife received a nice apartment from her father as a gift, and who was never aware of the risk that this gift could be considered part of any community of property?

Unclear international conventions

Of course, I can explain the international conventions a Dutch judge is likely to follow in the above cases, but international conventions are not always unambiguously applied.

If another foreign court is also considered to have jurisdiction, then the interpretation given by a foreign judge could be different. Especially if the foreign court is in a country outside the EU.

But also within EU, for instance in the UK or Denmark, a judge might come to different conclusions. This could be a reason for "forum shopping", especially in the case of a high-conflict divorce.

However, if the spouses want to investigate real solutions to real issues, this is best done at a mediation table.

Mediation: a great strategy for solutions

Luckily, expats are often open to investigating solutions through mediation.

When they choose to sit at my table, I inform them that the most important asset of mediation is the fact that they have to work on the solutions together.

Another important factor is the fact that the legal situation can be cleared up or adjusted whenever desired.

It is up to me to facilitate a safe environment in which a couple can freely express themselves and investigate reasonable solutions - with, of course, the necessary help, creative thinking and knowledge of international law.

Collaborative divorce

When it is not likely that I or any other mediator will be able to guarantee the necessary conditions or environment for mediation, parties can try "collaborative divorce", whereby both parties have their own lawyer who protects their interests.

These lawyers, however, more or less assume the position of mediator when addressing divorce-related issues.

The common goal of all parties concerned is to reach the best solution possible for both partners. A coach with a psychological background manages the process, pointing out at an early stage any possible problems concerning children, and offering guidance on the issue.

In financially-complex cases, an independent financial advisor or tax advisor can be involved, also from abroad.

Aiming for a fair and sustainable outcome

As far as the Marital Property Regime is concerned, sometimes it is more favorable to make a (new) marriage contract when a divorce is looming on the horizon, or at least to draw up a notarial deed regarding the choice of applicable matrimonial law.

This is in order to create a fair, reasonable and sustainable outcome for the parties themselves, that will also be accepted by the tax authorities.

Transferring to life after marriage

As a family lawyer, I always try to empower my divorce clients by reminding them that a divorce is a transfer from married life to life after marriage. From my experience, expats, more than most individuals, are capable of thinking this way.
 

Van Hilten Advocaten & Mediators offers free introductory interviews of 30 minutes, specifically for the purpose of diagnosing a client’s situation in case of a divorce.

If your Marital Property Regime is unclear or your prenup appears to be inadequate, contact them to schedule an introductory interview.