The swing under the old oak tree (and the priceless memories that accompany it)

Edith van Ruitenbeek is a lawyer, mediator and partner at Van Hilten Advocaten & Mediators, a practice which specialises in (inter)national family law. 

Of course we know that a house is much more than a pile of stones. For me, as a lawyer specialised in (international) family law, it is very clear that a house is not only an asset but also, above all, a harbour of memories and a basket of emotions.

Bird’s nest

The emotions in divorce situations that go with a lost home are often quite strong, especially for the children involved. It hurts even more when the new house is, at best, a bad copy of the previous one. This is why divorced parents sometimes decide to keep the family home and create a bird-nesting situation, meaning that they fly in for alternating weeks, whilst the children stay in their normal “habitat”.

In my experience, however, this only works for a limited time, especially when one of the parents becomes involved in a new relationship.

Bird-nesting helps parents realise what they would be asking from their children were the children to switch houses every week

Bird-nesting can certainly be considered, at least for some time, to be beneficial for the children. It also helps parents realise what they will be asking from their children if, later on, a co-parenting situation is created in which the children have to switch houses every week.

Preserving the family home

As a family lawyer and mediator, I am well aware of the fact that an arrangement concerning the marital home is often one of the challenges spouses have to deal with in a divorce situation.

If preserving the family home is a goal, there are options - though Dutch tax law has never been very facilitating on this matter, at least not for a period longer than two years.

In collaboration with a notary, it sometimes is better to draw up a (new) marriage contract. For my expat clients, choosing the applicable matrimonial law could already be enough to create the desired outcome, as it could facilitate matters such as asset transfer without tax consequences. This will make it possible for one of the parents to stay in the matrimonial home.

Starting in 2018, the tax law on this issue will be more favourable as well. Spouses will be allowed to create community property by notarial deed regarding the matrimonial home(s) alone, without any tax consequences.

The only condition will be that any future division of that community will result in a 50/50 split. This can be very useful in divorce cases in which the spouses are looking for a reasonable solution, whereby they consider the matrimonial home(s) as “joint” anyway, even if it was not financed equally by both and/or was not registered in both their names.

The inherited house

In inheritance situations, the parental house’s market value is not only a factor which needs to be taken into consideration; life-long emotions should be too, as well as cultural or traditional conventions and sensitivities.

Expats often own a house in their home country too, which is the family’s only anchor and certainly much more than a mere pile of stones to be dealt with in the case of a divorce

My expat clients are used to moving home from time to time, even crossing continental borders, and might seem somewhat immune to getting attached to a house too easily.

However, they often own a house in their home country as well. As this house is the only anchor in a challenging life for the whole family, including the children, it is certainly much more than a mere pile of stones that is to be dealt with in the case of a divorce or inheritance. 

Since 2015, new European regulations aimed at simplifying cross-border inheritances have been put in place, but there are still many tax issues left, especially as assets are still treated differently, from a tax perspective, in different countries.

For instance, in some countries houses are considered “in situ” goods, but bank accounts are not, which means that an inheritance of a one-million-euro house, along with a one-million-euro mortgage and equities worth one million euros is treated differently from an inheritance regarding only a one-million-euro house.

To my knowledge, one out of ten Dutch inheritances nowadays includes international assets, meaning that the tax consequences should be checked... and on time. More and more professionals involved in conflicts concerning inheritances are realising that these conflicts are not only the consequence of growing legal complexities, but also of important existential issues and social complexities.

Luckily, in the Netherlands, Alternative Dispute Resolution for inheritance issues or conflicts between generations is being used more and more, facilitated by specialised mediators.

The swing under the old oak tree should trigger good memories, and good memories alone.

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