5.1. How is the property (rights in rem) divided?

The share of a spouse from community property shall be established based on the status and value prevailing at the time of termination of community of property. Any change in value between the time of termination of community of property and the division of community property shall be taken into consideration, except if it is attributable to any conduct of either spouse. The division of specific items of community property shall be governed by the provisions on the termination of joint ownership, with the proviso that division in kind is not allowed if objected to by either of the spouses on reasonable grounds. These provisions shall also apply to the division of rights and claims forming part of community property.

(Art. 4:60 of the Civil Code)

For the distribution of the assets, the court shall take into account the spouses’ agreement. The assets which are required by one of the spouses for the pursuit of his/her profession or private entrepreneurial activities shall in principle accrue to that spouse.

(Art. 4:61 (1-2) of the Civil Code)

Separate property existing at the time of termination of community of property shall be allocated in kind, except when this is not possible on account of the mixing of assets or if division is likely to considerably diminish the value of community property or separate property.

(Art. 4:62 of the Civil Code)

The dissolution of the marriage or the termination of the joint marital life shall not in itself terminate the right of tenancy of the spouse who resides in a home under the other spouse’s legal title (e.g. a home which is exclusively owned by the other spouse).

(Art. 4:77 (2) of the Civil Code)

5.2. Who is liable for existing debts after the divorce/separation?

After the termination of the community of property, the spouses are liable for the joint debt in proportion to their respective shares in the common property, i.e. on a 50-50% basis.

If a specific asset is burdened with debt, it shall be covered by the spouse who gained ownership of the asset following distribution.

(Art. 4:61 (4) of the Civil Code)

5.3. Does one spouse have a claim to an equalisation payment?

In the course of division of community property, claims can be made for compensation for any expenses spent from community property on separate property, from separate property on community property and from the separate property of one spouse on the separate property of the other spouse, including the settlement of debts burdening the property of the other spouse. Compensation claims shall be settled in accordance with the provisions on determining the value of the spouses’ shares (see point 5.1.).

Compensation for any expenditures made from separate property for covering common expenses may be claimed under exceptional circumstances.

There shall be no right of compensation if it has been waived by the spouse. There are no formal requirements for the waiver, however, the burden of proof lies with the spouse who relies on the waiver.

Where an expenditure results in a considerable increase in the value of real estate property, the spouse entitled to compensation may also lay claim to an ownership share corresponding to the increase in the property’s value.

There shall be no right of compensation if there is no community property at the time when the community of property is terminated and the spouse liable to provide compensation has no separate property either.

(Art. 4:59 of the Civil Code)

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