3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
The spouses can depart from the statutory regime by concluding a marital agreement. The parties are free to choose the content of the agreement, but in practice one chooses between a limited community of property and an exclusion of any community, which is often combined with netting covenants. Differentiation must be made between the periodical netting covenant and the final netting covenant when the marriage is terminated. It is impossible to exclude maintenance claims against one another and limit the family protection rules, such as the need for the other spouse's consent for the disposal of the matrimonial home (see Art. 1:88 BW).
3.2. What are the formal requirements and who should I contact?
The marital agreement must be established in the form of an authentic instrument. For addresses of civil law notaries in the Netherlands, see: http://www.notaries-directory.eu.
3.3. When may the contract be concluded and when does it come into effect?
The marital agreement can be concluded before or during the marriage (see Art. 1:114 BW). In the first case it enters into effect at the time of solemnisation of the marriage, in the second case for the spouses one day after the execution of the instrument.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
It is possible to amend the agreement during the marriage, see further the answers to 3.2. and 3.3.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
In the Netherlands the marriage contract concluded during marriage is binding one day after the execution of the instrument, see art. 1:120 BW. Therefore it is not possible to conclude a marriage contract during marriage with retroactive effect.
