DUT CH FAMILY LAW IN THE 21ST CENTURY: TREND-SETTING AND STRAGGLING BEHIND AT THE SAME TIME Masha anto kolskaia and Katharina Boele-woelki IIA I Introduction At the beginning of the 21" century, Dutch family law is considered to be both trend- setting and straggling behind at the same time. This proposition seems to be ambiguous. However, to put it succ inctly, Dutch family law is unique in two ways: On the one hand, the Netherlands became the first country in the world where two partners of the same sex can enter into a marriage. On the other hand, the Netherlands is still the only country in the world where the un iversal community of property is the applicable legal matrimonial property regime. In this report an attempt is made to provide a brief overview concerning the current state of affairs of Dutch family law by concentrating on the following four main issues: (1) marriage and registered partnership; (2)divorce, d isso lution(of a registered partnership)and transformation of a marria ge into a registered partnership and vice versa), (3)the matrimonial property regime and(4) parents and children. Each paragraph contains both a brief description of the present state of the law and of the bills and drafts, which are currently being prepared. At the end of the report, an attempt is made to present an outlook for the future of Dutch family law. At this point, it is argued, among other things, that within Europe it is necessary to harmonise selected fields of family law. I The private international law aspects are not included in this report although these aspects belong to the topical issues of today with re gard to the dutch same-sex marriage and the possibility for same-sex partners to adopt a child. The Netherlands takes a unique position when it comes to marriage although some European countries have introduced the notion of the registered partnership. If either at least one of the partners is a Dutch national or habitually resident in the Netherlands, the question as to whether they may marry will be dealt with under Dutch law. Whether the law of the country of which the non-Dutch partner is a national perm its same-sex marriage is irrelevant. Therefore, all the countries in the world need to prepare themselves as to how they will legally react in case their nationals or authorities are confronted with the new Dutch institutions. Presently, it seems that the Dutch same-sex marriage or adoption will not be recogn ized in other countries due to a conflict with their public order. It is interesting to witness whether this situation will change in the next few years. Will other countries follow the Dutch approach or will the Netherlands remain isolated as a pioneer? Marriage and registered partnership Senor research Fellow at the Molengraaff Institute for Private Law, University of Utrecht; Member of the Expert Group of the Commssion on European Family Law. Her part of th ort has been nade possible by a fellowship from the Royal Netherlands Academy of Arts and Sciences Professor of Private International Law and Comparative Law, Molengraaff Institute for Private Law University of Utrecht; Member of the Organising List of abbreviations: FJR-Tiidsdrijff oor Familie- en Jeugdrecht NJ-Nederkndse Jurisprudentie, NJB-Nederkands Juristenblad, Staatsbad-Staatsblad oor het Koninkrijk der Nederlanden: WPNR Weekblad voor Privaatrecht, Notariaat en Registratie 2. Consequently, same-sex married couples will have t take into acoount that ther marriage luded in the Netherlands will in principle not be recognized n other tries. See on this question the extensive report of the Dutch Standing Governmental Commssion on Private International Law, whichwaspublishedon7January2002,seewww.justitienl/cactual/rapportcie/commissi.htm
DUTCH FAMILY LAW IN THE 21ST CENTURY: TREND-SETTING AND STRAGGLING BEHIND AT THE SAME TIME Masha Antokolskaia* and Katharina Boele-Woelki** II A 1 Introduction At the beginning of the 21st century, Dutch family law is considered to be both trendsetting and straggling behind at the same time. This proposition seems to be ambiguous. However, to put it succinctly, Dutch family law is unique in two ways: On the one hand, the Netherlands became the first country in the world where two partners of the same sex can enter into a marriage. On the other hand, the Netherlands is still the only country in the world where the universal community of property is the applicable legal matrimonial property regime. In this report an attempt is made to provide a brief overview concerning the current state of affairs of Dutch family law by concentrating on the following four main issues: (1) marriage and registered partnership; (2) divorce, dissolution (of a registered partnership) and transformation of a marriage into a registered partnership and vice versa), (3) the matrimonial property regime and (4) parents and children. Each paragraph contains both a brief description of the present state of the law and of the bills and drafts, which are currently being prepared. At the end of the report, an attempt is made to present an outlook for the future of Dutch family law. At this point, it is argued, among other things, that within Europe it is necessary to harmonise selected fields of family law.1 The private international law aspects are not included in this report although these aspects belong to the topical issues of today with regard to the Dutch same -sex marriage and the possibility for same-sex partners to adopt a child. The Netherlands takes a unique position when it comes to marriage although some European countries have introduced the notion of the registered partnership. If either at least one of the partners is a Dutch national or habitually resident in the Netherlands, the question as to whether they may marry will be dealt with under Dutch law. Whether the law of the country of which the non-Dutch partner is a national permits same-sex marriage is irrelevant. Therefore, all the countries in the world need to prepare themselves as to how they will legally react in case their nationals or authorities are confronted with the new Dutch institutions. Presently, it seems that the Dutch same-sex marriage or adoption will not be recognized in other countries due to a conflict with their public order.2 It is interesting to witness whether this situation will change in the next few years. Will other countries follow the Dutch approach or will the Netherlands remain isolated as a pioneer? 1 Marriage and registered partnership * Senior Research Fellow at the Molengraaff Institute for Private Law, University of Utrecht; Member of the Expert Group of the Commission on European Family Law. Her part of this report has been made possible by a fellowship from the Royal Netherlands Academy of Arts and Sciences. ** Professor of Private International Law and Comparative Law, Molengraaff Institute for Private Law, University of Utrecht; Member of the Organising Committee of the Commission on European Family Law. 1. List of abbreviations: FJR – Tijdschrift voor Familie- en Jeugdrecht; NJ – Nederlandse Jurisprudentie; NJB – Nederlands Juristenblad; Staatsblad – Staatsblad voor het Koninkrijk der Nederlanden; WPNR – Weekblad voor Privaatrecht, Notariaat en Registratie. 2. Consequently, same-sex married couples will have to take into account that their marriage concluded in the Netherlands will in principle not be recognized in other countries. See on this question the extensive report of the Dutch Standing Governmental Commission on Private International Law, which was published on 7 January 2002, see www.justitie.nl/c_actual/rapport/cie/commissi.htm
ANTOKOLSKAIA/BOELE-WOELKI From the Istof April 2001 homosexual and heterosexual couples wanting to foma lise a relationship can choose between three options: civil marriage, registered partnership or a cohabitation agreement. The last mentioned only has legal consequences for the parties who have signed it and only covers those issues, which the parties themselves want it to cover. The cohabitation agreement has to be legally drawn up by a notary Apart from these formalised relationships more than 1. 4 million couples are living together without any formalisation of their relationship. 3 The law does not Regulate these cohabitations and consequently there is enormous uncerta inty about the rights and obligations of the partners especially if the cohabitation should end. Recently,it has been convincingly advocated that the dutch legislator, like the situation in Sweden and New Zealand, should take action with regard to these relationships, which in relation to 7 million married couples are quite numerous and the numbers are even still l.1 The Act Opening Marriage to Same-Sex Couples of 21 December 20005 entered into force on Ist April 2001. Art icle 1: 30, which used to determ ine that a marriage could ly be concluded between a ma a man and a woman, contains the most mp It now states in its first section that two persons of the opposite sex or two persons of the same sex may conclude a marriage. The world premiere of such a same-sex marriage took place in Amsterdam. Just after midnight the mayor, who in his former capacity as the State Secretary of Justice had been advocating the Act in Parliament concluded the first four marriages between same-sex partners. In 2001, in total 2,387 same-sex marriages were concluded between 1, 325 male couples and 1,062 female couples. In most cases, the same-sex couples had previously concluded a registered partnership, which was transformed into a maria ge. In addition, it is worth mentioning that more than 82, 000 heterosexual marriages were concluded in the same year.0 The first figures on same-sex marriages do not yet allow any far-reaching conclusions However, the figures on registered partnerships that are shown below, obviously indicate that there is a relationship between the use of both institutions Which conditions need to be fulfilled to enter into a marriage? To begin with, it is worth stressing that in the Netherlands the princ iple of a monogamous marriage is still upheld(Art. 1: 33 ). This means that no one in the Netherlands may marry more than one person at the same time and anyone wanting to marry may not already be married 3. See Garssen, J/De Beer, J /Cuyvers, P /De Jong, A(eds ), Samenlewen, Nieinre feiten over relaties 4 gecinnen(2001) ee Schram, W, Vermogensrecht voor ongehuwde samenlevers(2000) 5. See extensively on the preparation of the Act and the political discussions, Forder, C, To marry or marry: That is thequestion, Bainham, A,(ed), The Intemational Suney of Family Law(2001) 6 taatsblad 2001.9 7. All the cited articles refer to the dutch Civil Code unless otherwise stated 8. See Maxwell, NG Openng Civil Marriages to Same-Gender Couples: A Netherlands- United tates Comparison, Electronic Journal of comparative Law, 9. Is a civil status registrar allowed to refuse to register a marriage between two persons of the same sex Intemational Survey of famly Law(2002), to bepublished 10.Intotal82,819marriagesSeeCentraalBureauvoordestatistiekhttp://statline.cbs.nl 54
ANTOKOLSKAIA/BOELE-WOELKI 54 From the 1st of April 2001 homosexual and heterosexual couples wanting to formalise a relationship can choose between three options: civil marriage, registered partnership or a cohabitation agreement. The last mentioned only has legal consequences for the parties who have signed it and only covers those issues, which the parties themselves want it to cover. The cohabitation agreement has to be legally drawn up by a notary. Apart from these formalised relationships more than 1.4 million couples are living together without any formalisation of their relationship.3 The law does not Regulate these cohabitations and consequently there is enormous uncertainty about the rights and obligations of the partners especially if the cohabitation should end. Recently, it has been convincingly advocated that the Dutch legislator, like the situation in Sweden and New Zealand, should take action with regard to these relationships, which in relation to 7 million married couples are quite numerous and the numbers are even still increasing.4 1.1 Marriage The Act Opening Marriage to Same-Sex Couples of 21 December 20005 entered into force on 1st April 2001.6 Article 1:30,7 which used to determine that a marriage could only be concluded between a man and a woman, contains the most important change. It now states in its first section that two persons of the opposite sex or two persons of the same sex may conclude a marriage. 8 The world première of such a same-sex marriage took place in Amsterdam. Just after midnight the mayor, who in his former capacity as the State Secretary of Justice had been advocating the Act in Parliament, concluded the first four marriages between same-sex partners. In 2001, in total 2,387 same-sex marriages were concluded between 1,325 male couples and 1,062 female couples.9 In most cases, the same-sex couples had previously concluded a registered partnership, which was transformed into a marriage. In addition, it is worth mentioning that more than 82,000 heterosexual marriages were concluded in the same year.10 The first figures on same-sex marriages do not yet allow any far-reaching conclusions. However, the figures on registered partnerships that are shown below, obviously indicate that there is a relationship between the use of both institutions. Which conditions need to be fulfilled to enter into a marriage? To begin with, it is worth stressing that in the Netherlands the principle of a monogamous marriage is still upheld (Art. 1:33). This means that no one in the Netherlands may marry more than one person at the same time and anyone wanting to marry may not already be married 3. See Garssen, J./De Beer, J./Cuyvers, P./De Jong, A. (eds), Samenleven, Nieuwe feiten over relaties en gezinnen (2001). 4. See Schrama, W., Vermogensrecht voor ongehuwde samenlevers (2000). 5. See extensively on the preparation of the Act and the political discussions, Forder, C., ‘To marry or not to marry: That is the question’, Bainham, A., (ed), The International Survey of Family Law (2001), p. 301-320. 6. Staatsblad 2001, 9. 7. All the cited articles refer to the Dutch Civil Code unless otherwise stated. 8. See Maxwell, N.G., ‘Opening Civil Marriages to Same-Gender Couples: A Netherlands - United States Comparison’, Electronic Journal of Comparative Law, http://law.kub.nl/ejcl/43/art43-1.html. 9. Is a civil status registrar allowed to refuse to register a marriage between two persons of the same sex on the grounds of personal conscience? See on this question Schrama, W., ‘Reforms in Dutch Family Law During the Course of 2001: Increased Pluriformity and Complexity’, Bainham, A., (ed), The International Survey of Family Law (2002), to be published. 10. In total 82,819 marriages. See Centraal Bureau voor de Statistiek, http://statline.cbs.nl
DUTCH FAMILY LAWIN THE 2 IST CENTUR or be party to a registered partnership with a person other than the future spouse(Art 1: 42). During the discussions on the opening of marriage to same-sex couples wever, opponents sarcastically questioned whether a special form of polygamous marriage, where three or four persons are maried with each other at the same time would probably be the next step. In fact it remains to be seen whether the Dutch Govemment will create legal relationships a la carte. On the other hand, if merely five years ago someone would have prophesied that two men or two women would be allowed to enter into a marriage almost everyone would have thought that this idea was completely utopian. In addition to the requirement of monogamy anyone wanting marry must years of age 1)2 and with regard to consanguinity a marriage is not allowed between parents and children, grandparents and grandchildren or brothers and sisters(Art. 1: 41, 1).13 In case both partners are non-Dutch nationals and living abroad, they may not marry in the Netherlands. They are only allowed to do so if (1)at least one of them is resident in the Netherlands; (2)one of them is a Dutch national if both partners live outside the Netherlands or(3)if both partners live in the Netherlands when neither of them is a Dutch national Marria ges may only be blessed in church after the civil ceremony has taken place(Art 68). Article 449 of the Penal Code determines that contravening this rule is a criminal offence. 4 Recently, the Second Chamber's Standing Commission for Legal ffairs tabled questions to the State Secretary of Justice in order to clarify the relationship between civil and religious mariages. The tenor of the answers is easily predictable. Religious marriages are not allowed to take place before a civil marriage Civil re gistration is the only re gistration which guarantees the certa inty and consistency of the lw. Therefore, also in the future no competence will be granted to religious institutions in this respect. The consequences of marriage between two men or two women are much the same as those of a marria ge between a man and a woman There is no difference with re gard to the law regulating the surname of the spouses, 16 ma intenance, 17 general community of property, 8 pensions, legal transactions, 20 inheritance and relationship by marriage. 21 I1.See Nuytinck, AJM, De Wet openstw.a. V an Mourik(2000),p.213.22 personen van hetzelfde 12. Exceptions are possble, and it s up to the Minister of Justice to decide. Minors between 16 and 18 refused, the minor may apply to the sub-district court for permission(Art. 1: 36p 35).If permission s ears of age can only marry with their parents'or guard ian's permiss ion(Art 13. Brothers and sisters who arerelated through adoption may apply to the Minister of Justice foran exemption fromthis rule(Art. 1: 412) 4. The last two cases in this respect date from 1993. 16. Spouses may use each other's sumame, in combination with or nstead of their own. This does not 17 Pply to official documents, in which their own name alwayshas to beused 17. Married couples areobliged to do what is within their means to support each other. In principle, the each have to contribute to the costs of running the household 18. See section 3 of this report 19. Anyone who contributes t a pension scheme builds up entitlements to a retirement or dependants'pension. The entitlements, which have built up, to a retirement pension d marriage have t be divided between the partners in the event of a divorce Married couples their own arrangements. The surviving dependants' pension accrues to the surviv ng partner on the death ofhis/her spouse 20. In certain cases, such as the sale of the matrimonial home or the conclusion of a hire purchase agreement, marred couples must have each others pemssion before they can enter nto obligations or take decisions
DUTCH FAMILY LAW IN THE 21ST CENTURY 55 or be party to a registered partnership with a person other than the future spouse (Art. 1:42). During the discussions on the opening of marriage to same-sex couples, however, opponents sarcastically questioned whether a special form of polygamous marriage, where three or four persons are married with each other at the same time, would probably be the next step.11 In fact it remains to be seen whether the Dutch Government will create legal relationships à la carte. On the other hand, if merely five years ago someone would have prophesied that two men or two women would be allowed to enter into a marriage almost everyone would have thought that this idea was completely utopian. In addition to the requirement of monogamy anyone wanting to marry must be 18 years of age or older (Art. 1:31) 12 and with regard to consanguinity a marriage is not allowed between parents and children, grandparents and grandchildren or brothers and sisters (Art. 1:41,1).13 In case both partners are non-Dutch nationals and living abroad, they may not marry in the Netherlands. They are only allowed to do so if (1) at least one of them is resident in the Netherlands; (2) one of them is a Dutch national if both partners live outside the Netherlands or (3) if both partners live in the Netherlands when neither of them is a Dutch national. Marriages may only be blessed in church after the civil ceremony has taken place (Art. 1:68). Article 449 of the Penal Code determines that contravening this rule is a criminal offence.14 Recently, the Second Chamber’s Standing Commission for Legal Affairs tabled questions to the State Secretary of Justice in order to clarify the relationship between civil and religious marriages. The tenor of the answers is easily predictable. Religious marriages are not allowed to take place before a civil marriage. Civil registration is the only registration, which guarantees the certainty and consistency of the law. Therefore, also in the future no competence will be granted to religious institutions in this respect.15 The consequences of marriage between two men or two women are much the same as those of a marriage between a man and a woman. There is no difference with regard to the law regulating the surname of the spouses,16 maintenance,17 general community of property,18 pensions,19 legal transactions,20 inheritance and relationship by marriage.21 11. See Nuytinck, A.J.M., ‘De Wet openstelling huwelijk en de Wet adoptie door personen van hetzelfde geslacht’, Yin-Yang, Liber amicorum M.J.A. Van Mourik (2000), p. 213-222. 12. Exceptions are possible, and it is up to the Minister of Justice to decide. Minors between 16 and 18 years of age can only marry with their parents’ or guardian’s permission (Art 1:35). If permission is refused, the minor may apply to the sub-district court for permission (Art. 1:36). 13. Brothers and sisters who are related through adoption may apply to the Minister of Justice for an exemption from this rule (Art. 1:41,2). 14. The last two cases in this respect date from 1993. 15. Second Chamber 2001/2002, 28078, no.2. 16. Spouses may use each other’s surname, in combination with or instead of their own. This does not apply to official documents, in which their own name always has to be used. 17. Married couples are obliged to do what is within their means to support each other. In principle, they each have to contribute to the costs of running the household. 18. See section 3 of this report. 19. Anyone who contributes to a pension scheme builds up entitlements to a retirement or surviving dependants’ pension. The entitlements, which have built up, to a retirement pension during the marriage have to be divided between the partners in the event of a divorce. Married couples can make their own arrangements. The surviving dependants’ pension accrues to the surviving partner on the death of his/her spouse. 20. In certain cases, such as the sale of the matrimonial home or the conclusion of a hire purchase agreement, married couples must have each other’s permission before they can enter into obligations or take decisions
ANTOKOLSKAIA/BOELE-WOELKI The major differences between a heterosexual and a homosexual marriage however relate to children 22 It has be mariages between homosexual or heterosexual couples are largely similar. The ru les for entering into, concluding and dissolving marriage 23 are the same, as are partners'obligations to each other. However, ' marmiage'in Article 28 of the Dutch Constitution, which concerns the marriage of the king or queen, is still interpreted as referring exclusively to a marriage between a man and a woman. The different concepts of constitutional law and civil law have been intensively discussed. 24 Accord ing to the Govemment,the nature of a hereditary monarchy cannot be reconciled with a same-sex marriage, which can never lead to the natural birth of children. Therefore, the king queen or a potential the throne has no right to marry a partner of the same sex. 25 2 Registered partnership Three years before the Act Opening Marriage to Same-Sex Couple a new institution was introduced into Dutch family law. 0 On 1st January 1998, the Act on Registered Partnerships came into force. Since that date, two persons can enter into a registered partnership, their sex being irrelevant (Art. 1: 80a/3). To put it concisely, the registered partnership hardly differs from the marriage. The substantive conditions, the formalities, the conclusion, the ceremony, the annulment and the proof of a registered partnership are governed by rules equivalent to those concerning marriage. In fact, a registered partnership has the same effect as a marriage. Effects of marriage'is to be understood in the strict sense, that is to say excluding divorce. 8In addition to this difference the registered partnership creates no relationship of filiation between the child of one partner and the other partner. 29 21. Through marriage, couples enter into a relationship with the members of their spouse s family 22. These differences arediscussed in section 4 ofthis report 23. See section 2 of this report 24. First Chamber 15670 Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften(2000). 51-112 27. Act of 17th December 1997. Staatsblad 660 28. See section 2. 1 ofthis report
ANTOKOLSKAIA/BOELE-WOELKI 56 The major differences between a heterosexual and a homosexual marriage, however, relate to children.22 It has become clear from the brief description above that in principle marriages between homosexual or heterosexual couples are largely similar. The rules for entering into, concluding and dissolving marriage23 are the same, as are partners’ obligations to each other. However, ‘marriage’ in Article 28 of the Dutch Constitution, which concerns the marriage of the king or queen, is still interpreted as referring exclusively to a marriage between a man and a woman. The different concepts of constitutional law and civil law have been intensively discussed. 24 According to the Government, the nature of a hereditary monarchy cannot be reconciled with a same-sex marriage, which can never lead to the natural birth of children. Therefore, the king, queen or a potential successor to the throne has no right to marry a partner of the same sex.25 1.2 Registered partnership Three years before the Act Opening Marriage to Same-Sex Couples entered into force a new institution was introduced into Dutch family law. 26 On 1st January 1998, the Act on Registered Partnerships came into force.27 Since that date, two persons can enter into a registered partnership, their sex being irrelevant (Art. 1:80a/3). To put it concisely, the registered partnership hardly differs from the marriage. The substantive conditions, the formalities, the conclusion, the ceremony, the annulment and the proof of a registered partnership are governed by rules equivalent to those concerning marriage. In fact, a registered partnership has the same effect as a marriage. ‘Effects of marriage’ is to be understood in the strict sense, that is to say excluding divorce. 28 In addition to this difference the registered partnership creates no relationship of filiation between the child of one partner and the other partner.29 21. Through marriage, couples enter into a relationship with the members of their spouse’s family. 22. These differences are discussed in section 4 of this report. 23. See section 2 of this report. 24. First Chamber 15670. 25. First Chamber 15659 and 15671. 26. See Boele-Woelki, K./Schrama, W., ‘Die Rechtsstellung von Menschen mit homosexueller Veranlagung im niederländischen Recht’, Basedow, J./Hopt, K.J./Kötz, H./Dopffel, P., Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften (2000), p. 51-112. 27. Act of 17th December 1997, Staatsblad 660. 28. See section 2.1 of this report. 29. See section 4 of this report
DUTCH FAMILY LAWIN THE 2 IST CENTUR M-M 口MW 1000 500 2000 2001 Registered partnerships concluded betveen 1998 and 200130 The figures above show that the registered partnership has considerably lost its a ttractiveness for same-sex partners whereas the number of registered partnerships between opposite-sex partners spectacularly increased. The remarka ble reduction of the number of same-sex partnerships is certa inly interrelated with the opening of marriage for these couples since 1st April 2001. On the other hand, the increase in different-sex partnerships in 2001 is more difficult to explain. Why should persons of different sex wish to enter into a registered partnership? Why opt for this inst itution when it can more or less be considered akin to maria ge? Apart from the fact that a sociological study is urgently needed, there are three possible explanations: Firstly, by now the registered partnership has become more known to those couples who think that marriage is the only possibility by which to formalise their relationship. In addition, the joint custody of children born within a registered partnership, which was troduced on Ist January 2002, is probably a welcome prospect. Secondly, the cause may also be found in a degree of reticence towards the symbolic meaning of marriage and probably towards the effects of marriage as regards filiations. Thirdly, and in the view of the pertinent authors this reasoning is the most likely, the increase can be explained by the phenomenon of the so-called "lightning-divorces'flitsscheidingen) It was never the intention of the Government, however, to create a simplified divorce but since the entry into force of the Act Opening Marriage to Same-Sex Couples an 1 Bureau voor de statistiek, op cit. (note 10). Period1998199920002001Total M-M168689 815 3373735 W-W1324 785 288 3261 M-W 6161495132226917124 Total462632562922331614120
DUTCH FAMILY LAW IN THE 21ST CENTURY 57 0 500 1000 1500 2000 2500 3000 1998 1999 2000 2001 M - M W-W M-W Registered partnerships concluded between 1998 and 200130 The figures above show that the registered partnership has considerably lost its attractiveness for same-sex partners whereas the number of registered partnerships between opposite-sex partners spectacularly increased. The remarkable reduction of the number of same-sex partnerships is certainly interrelated with the opening of marriage for these couples since 1st April 2001. On the other hand, the increase in different-sex partnerships in 2001 is more difficult to explain. Why should persons of different sex wish to enter into a registered partnership? Why opt for this institution when it can more or less be considered akin to marriage? Apart from the fact that a sociological study is urgently needed, there are three possible explanations: Firstly, by now the registered partnership has become more known to those couples who think that marriage is the only possibility by which to formalise their relationship. In addition, the joint custody of children born within a registered partnership, which was introduced on 1st January 2002, is probably a welcome prospect. Secondly, the cause may also be found in a degree of reticence towards the symbolic meaning of marriage and probably towards the effects of marriage as regards filiations. Thirdly, and in the view of the pertinent authors this reasoning is the most likely, the increase can be explained by the phenomenon of the so-called ‘lightning-divorces’ (flitsscheidingen). It was never the intention of the Government, however, to create a simplified divorce but since the entry into force of the Act Opening Marriage to Same-Sex Couples an 30 See Centraal Bureau voor de Statistiek, op.cit. (note 10). Period 1998 1999 2000 2001 Total M – M 1686 897 815 337 3735 W – W 1324 864 785 288 3261 M – W 1616 1495 1322 2691 7124 Total 4626 3256 2922 3316 14120
ANTOKOLSKAIA/BOELE-WOELKI uncomplicated procedure at the office of the civil status registrar to transform a marriage into a registered partnership and vice versa has been introduced. 31 With the above figures in mind another important issue should be addressed, namely the relationship between registered a partnership and marriage. Should the registered partnership be preserved after 1st April 2001? The decision to make registered partnerships available for heterosexual couples is based on the presumed need of heterosexual couples to opt for a regulation which contains a lesser degree of symbolism when compared to marriage. Apparently, this presumption seems to be correct. Since 2001,81%of all registered partnerships are now concluded between heterosexual couples. However, it should be kept in mind that most of the couples in these registered partnerships were probably previously married and that the registration of their partnership is only a transformation of their marriage- a. half- way step'so to speak- in order to obtain a simplified divorce by subsequently dissolv ing the registered partnership. Apart from this consequence, the most important goal of the Act on Registered Partnership in 1998 was to create an institution for same-sex couples, which is similar to marriage. The equality for same-sex partners has already been achieved by the registered Partnership Act but in this respect the Act on Opening Marria ge to Same-Sex Couples has overruled the registered Partnership Act To put it more clearly, the decision to make the registered partnership available for heterosexual couples should have led to a reconsideration of the status of the institution of registered partnership as such at the moment the marriage was opened for same-sex couples. Conversely, the Govemment decided to postpone any definite decision on the future of the institution of registered partnership until 2006 when the Act Opening Marriage to Same-Sex Couples will be evaluated.32 Divorce, dissolution and transformation 2.l Divorce For more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage(Art. 1: 151)33 This applies both to unilateral and common application for divorce. Astonishingly, divorce by consent does not exist as an autonomous ground for divorce under Dutch law. Article 1: 154 explicitly requires that a divorce shall only be granted upon the common request of the spouses if the request is based on their mutual agreement that the marriage has irretrievably broken down Since 1998, the number of divorces has been steadily increasing. In 2001, 39% of all marriages were dissolved by divorce 31. See section 23 of ths report. No figures are currently available on the trans formation and the obsequent dissolution ofregistered partnerships. 32. See Schrama, opcit. (note 9 33. Since 1October 1971
ANTOKOLSKAIA/BOELE-WOELKI 58 uncomplicated procedure at the office of the civil status registrar to transform a marriage into a registered partnership and vice versa has been introduced.31 With the above figures in mind another important issue should be addressed, namely the relationship between registered a partnership and marriage. Should the registered partnership be preserved after 1st April 2001? The decision to ma ke registered partnerships available for heterosexual couples is based on the presumed need of heterosexual couples to opt for a regulation which contains a lesser degree of symbolism when compared to marriage. Apparently, this presumption seems to be correct. Since 2001, 81% of all registered partnerships are now concluded between heterosexual couples. However, it should be kept in mind that most of the couples in these registered partnerships were probably previously married and that the registration of their partnership is only a transformation of their marriage – a ‘halfway step’ so to speak – in order to obtain a simplified divorce by subsequently dissolving the registered partnership. Apart from this consequence, the most important goal of the Act on Registered Partnership in 1998 was to create an institution for same-sex couples, which is similar to marriage. The equality for same-sex partners has already been achieved by the Registered Partnership Act but in this respect the Act on Opening Marriage to Same-Sex Couples has overruled the Registered Partnership Act. To put it more clearly, the decision to make the registered partnership available for heterosexual couples should have led to a reconsideration of the status of the institution of registered partnership as such at the moment the marriage was opened for same-sex couples. Conversely, the Government decided to postpone any definite decision on the future of the institution of registered partnership until 2006 when the Act Opening Marriage to Same-Sex Couples will be evaluated.32 2 Divorce, dissolution and transformation 2.1 Divorce For more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage (Art. 1:151).33 This applies both to unilateral and common application for divorce. Astonishingly, divorce by consent does not exist as an autonomous ground for divorce under Dutch law. Article 1:154 explicitly requires that a divorce shall only be granted upon the common request of the spouses if the request is based on their mutual agreement that the marriage has irretrievably broken down. Since 1998, the number of divorces has been steadily increasing. In 2001, 39% of all marriages were dissolved by divorce. 31. See section 2.3 of this report. No figures are currently available on the transformation and the subsequent dissolution of registered partnerships. 32. See Schrama, op.cit.(note 9). 33. Since 1st October 1971
DUTCH FAMILY LAWIN THE 2 IST CENTUR 33000 32000 31000 29000 1995199619971998199920002001 Divorce rate 1995-200134 2.2 Dissolution of a registered partnership s regards the dissolution of the partnership by a court, a parallel was sought with divorce granted by a court. However, the two sets of rules are not identical. There are two differences: First, an application for the dissolution of a registered partnership by a court can only be made by one of the partners(Art. 1: 80c/d and Art. 1: 80e), whereas a divorce can be granted upon a joint application by the two spouses. Moreover,a divorce upon joint application is only granted when the two spouses consider that their marriage has irretrieva bly broken down whereas the fact that the registered partnership has irretrievably broken down is irrelevant as regards the dissolution of the registered partnership. Secondly, the dissolution of a registered partnership by the mutual onsent of the partners without the intervention of a court has no equivalent in the law of divorce. This difference was alleged, during the parliamentary debates, to be justified by the fact that a registered partnership creates no relationship of filiation been introduced with regard to children of registered partners js blistered partnership The question of child protection would not arise at the end of a registered partners However, this argument no longer holds true. Since 1st January 2002 joint custody has Dissolution by the mutual consent of the partners that they have to draw up a declaration, which must be signed by both a notary or a la wyer and by the two partners (Art. 1: 80c/c). This declaration must disclose partners have come to an agreement to put an end to their partnership and indicate the date when the agreement See Centraal Bureauvoorde statistiek op cit. (note 10 1995 1997 2001 41703487 33740324593357 4650 35. See section 4.2. l of this report
DUTCH FAMILY LAW IN THE 21ST CENTURY 59 29000 30000 31000 32000 33000 34000 35000 36000 37000 38000 1995 1996 1997 1998 1999 2000 2001 Divorce rate 1995-200134 2.2 Dissolution of a registered partnership As regards the dissolution of the partnership by a court, a parallel was sought with divorce granted by a court. However, the two sets of rules are not identical. There are two differences: First, an application for the dissolution of a registered partnership by a court can only be made by one of the partners (Art. 1:80c/d and Art. 1:80e), whereas a divorce can be granted upon a joint application by the two spouses. Moreover, a divorce upon joint application is only granted when the two spouses consider that their marriage has irretrievably broken down whereas the fact that the registered partnership has irretrievably broken down is irrelevant as regards the dissolution of the registered partnership. Secondly, the dissolution of a registered partnership by the mutual consent of the partners without the intervention of a court has no equivalent in the law of divorce. This difference was alleged, during the parliamentary debates, to be justified by the fact that a registered partnership creates no relationship of filiation. The question of child protection would not arise at the end of a registered partnership. However, this argument no longer holds true. Since 1st January 2002 joint custody has been introduced with regard to children of registered partners.35 Dissolution by the mutual consent of the partners requires that they have to draw up a declaration, which must be signed by both a notary or a lawyer and by the two partners (Art. 1:80c/c). This declaration must disclose that the partners have come to an agreement to put an end to their partnership and indicate the date when the agreement 34. See Centraal Bureau voor de Statistiek op.cit. (note 10). 1995 1996 1997 1998 1999 2000 2001 34170 34871 33740 32459 33571 34650 37505 35. See section 4.2.1 of this report
ANTOKOLSKAIA/BOELE-WOELKI was made. 36 In this agreement, the partners must state that their registered partnership has irretrievably broken down and that they wish it to end. In addition, the agreement must include provisions on maintenance payments, attribution of the(temporary )use of the marital home, division of the assets and participation in pension rights. However, the absence of agreed provisions on these specific points does not render the a greement invalid(Art. 1: 80d) Transformation of a marriage into a registered partnership and vice versa In principle, in the Netherlands a divorce can only be obtained by menas of judicial proceedings. Since 1st April 2001, however, a possibil ity exists to obtain a divorce ithout the intervention of the courts and theoretica lly even within 24 hours. The Act Opening Marriage to Same-Sex Couples provides the possibility to easily transform a registered partnership into a marriage and vice versa. 37 Apart from divorce, a marriage is also re garded as having been dissolved when it is transformed into a registered partnership(Art. 1: 149 and Art. 1: 77a). Upon the request of both spouses, the civil status registrar draws up an act of transformation. Subsequently, the registered partners can dissolve their registered partnership by mutual consent. Their declaration must reach the civil status registrar within at least three months after the conclusion of the agreement in order to be registered by him(Art. 1: 80d/3). However, if one so wishes, it is possib le to register the agreement on the same day when the transformation of the marriage into a registered partnership has taken place. Recently, this expedition form of divorce has led to new discussions. It has been argued that this possibility, which has been underestimated by the Government, will encourage divorce because spouses may use this possibility impulsivley and as a knee-jerk eaction. In many cases, they would not seriously consider the consequences. This would especially harm the interests of their children if they have any. On the other hand, spouses may make use of " lightning-d ivorces' for another reason. In principle the law requires the permission of the court if the spouses want to change their matrimonial property regime during their marriage(Art. 1: 119). This perm ission will only be granted if after an investigation by the court the creditors of the spouses will not be placed in a disadvantageous position with regard to their claims. If the spouses use the possibility of a lightning-divorce and if they subsequently remarry and enter both of them, the aim of the judicial permission, that is to protect creditors, is therely into a prenuptial agreement which conta ins a more profitable matrimonial regime fo circumvented. No figures are available as yet, but the head of Civil Registration in Amsterdam has confirmed that several spouses made use of this poss ibility immediately after the entry into force of the Act Opening Marriage for Same-Sex Partners for this reason It is clear that the a bove-mentioned procedure represents the first step in the direction of a divorce without judicial proceedings, to a greater or lesser degree as the Comm ission for the Rev is ion of Divorce Proceedings advised in 1996. 38 In reaction to the latest increase in the divorce rate and especally the presumed increase of lighting divorces'in the Netherlands, the State Secretary of Justice acknowledged that the number of dissolutions of registered partnerships after the transformation of a is not necessary to recite the content ofthe agreement in the dedaration. irretrievable breakdown if they wished to mary. 38. Commissie De Ruiter, Anders Scheiden, 2 Oktober 1996, Chapter 3.3
ANTOKOLSKAIA/BOELE-WOELKI 60 was made.36 In this agreement, the partners must state that their registered partnership has irretrievably broken down and tha t they wish it to end. In addition, the agreement must include provisions on maintenance payments, attribution of the (temporary) use of the marital home, division of the assets and participation in pension rights. However, the absence of agreed provisions on these specific points does not render the agreement invalid (Art. 1:80d). 2.3 Transformation of a marriage into a registered partnership and vice versa In principle, in the Netherlands a divorce can only be obtained by menas of judicial proceedings. Since 1st April 2001, however, a possibility exists to obtain a divorce without the intervention of the courts and theoretically even within 24 hours. The Act Opening Marriage to Same-Sex Couples provides the possibility to easily transform a registered partnership into a marriage and vice versa. 37 Apart from divorce, a marriage is also regarded as having been dissolved when it is transformed into a registered partnership (Art. 1:149 and Art. 1:77a). Upon the request of both spouses, the civil status registrar draws up an act of transformation. Subsequently, the registered partners can dissolve their registered partnership by mutual consent. Their declaration must reach the civil status registrar within at least three months after the conclusion of the agreement in order to be registered by him (Art. 1:80d/3). However, if one so wishes, it is possible to register the agreement on the same day when the transformation of the marriage into a registered partnership has taken place. Recently, this expedition form of ‘divorce’ has led to new discussions. It has been argued that this possibility, which has been underestimated by the Government, will encourage divorce because spouses may use this possibility impulsivley and as a knee -jerk reaction. In many cases, they would not seriously consider the consequences. This would especially harm the interests of their children if they have any. On the other hand, spouses may make use of ‘lightning-divorces’ for another reason. In principle, the law requires the permission of the court if the spouses want to change their matrimonial property regime during their marriage (Art. 1:119). This permission will only be granted if after an investigation by the court the creditors of the spouses will not be placed in a disadvantageous position with regard to their claims. If the spouses use the possibility of a ‘lightning-divorce’ and if they subsequently remarry and enter into a prenuptial agreement which contains a more profitable matrimonial regime for both of them, the aim of the judicial permission, that is to protect creditors, is thereby circumvented. No figures are available as yet, but the head of Civil Registration in Amsterdam has confirmed that several spouses made use of this possibility immediately after the entry into force of the Act Opening Marriage for Same-Sex Partners for this reason. It is clear that the above-mentioned procedure represents the first step in the direction of a divorce without judicial proceedings, to a greater or lesser degree as the Commission for the Revision of Divorce Proceedings advised in 1996.38 In reaction to the latest increase in the divorce rate and especially the presumed increase of ‘lighting - divorces’ in the Netherlands, the State Secretary of Justice acknowledged that the number of dissolutions of registered partnerships after the transformation of a 36. It is not necessary to recite the content of the agreement in the declaration. 37. Before that date, the partners in a registered partnership had to dissolve their partnership on the ground of irretrievable breakdown if they wished to marry. 38. Commissie De Ruiter, Anders Scheiden, 2 Oktober 1996, Chapter 3.3
DUTCH FAMILY LAWIN THE 2 IST CENTUR marriage into a registered partnerships has indeed increased. 39 He reaffirmed hs pinion 40 by stating that in his view the possibil transform ing a marriage into a registered partnership does not encourage divorce. 4 Besides, it was stated that in the agreement on the dissolution of a registered partnership arrangements should be made to certain the effects of the dissolution, such as arrangements concerning maintenance, division of common property etc. In this respect, the State Secretary noticed that the arrangements to be made are mostly the same as those to be provided in the divorce agreement. He also affirmed that at present he Central Bureau of Statistics is considering whether it is possib le to keep up to date the number of transformations of marriages into registered partnerships followed by the dissolution of the re gistered partnership by the common consent of the parties throughout the country Matrimonial property law 3.l The current situation The Nether lands remains the last country in the world where the universal community of property has remained until the 21 century as the legal re gime regulating matrimonial property 42 Accord ing to its apologists, it is a Dutch national monument+3 Its adversaries, however, would like to see it become a gravestone as soon as possible The universal community of property is regulated in the Civil Code(Title 7 of Book 1) However, it is still called "law on matrimonial property, and is extrapolated to registered partnerships. 44 According to Art. 1: 94 the totality of assets and debts acquired before and during the marriage fall within the community. 45 Donated and inherited assets follow the same course, unless the donor or testator explicit ly excludes this 46 Only a special category of assets closely attached to the person of one of the spouses is not included within the community+. Each of the spouses has a right to manage the assets, which he/she has brought into the community scheme. Some transactions like the disposition of the family home or donations, exceeding the value of ordinary gifts; require the consent of the other spouse(Art. 1: 88 ). The cred itors can levy execution on the whole of the common property both for the personal and the common debts of the spouses. If the marriage is terminated by death or divorce the community property is divided equally The spouses can enter into a prenuptial agreement+at the time of concluding marriage and during the mariage itself, 49 but in the latter case, the approval of 9. Letter by the State Secretary of Justice on 5 March 2002, Second Chamber 2001/2002, 28000, no 57 40. Second Chamber 2000/2001 no 1700 41. Keeping in mind the statistics n secton 1.2 of thi report it can be argued that this statement s far 42. The universal ity of property was introduced throughout the whole of the Netherlands in 1938 43. See Luijten, E,, ' Panta rhei, ook in het huwelijksvermogensrecht', WPNR 6432, p. 96. 44. Art. 1 80b. There is no special regulation for the property relations of those who are neither marred nor have entered into a registered partnership. See on this issue: Schrama, opcit. (note 45. However, certan pens ion rights remain outs de the community of property (Art. 1 94/3) they have to 46. These exceptions are made in the majority of wills and donations 47. For more on th ee: Mourk, M, van/Verstappen, L, Nederlands verogensrecht bij 48. About 28% of spouses made use of thi possibility in 1996. See Mourk, M,van, De ntwikkelingen in de praktijk der huwelijksvoorwaarden', WPNR 6302,P 117
DUTCH FAMILY LAW IN THE 21ST CENTURY 61 marriage into a registered partnerships has indeed increased. 39 He reaffirmed his previously expressed opinion 40 by stating that in his view the possibility of transforming a marriage into a registered partnership does not encourage divorce.41 Besides, it was stated that in the agreement on the dissolution of a registered partnership arrangements should be made to certain the effects of the dissolution, such as arrangements concerning maintenance, division of common property etc. In this respect, the State Secretary noticed that the arrangements to be made are mostly the same as those to be provided in the divorce agreement. He also affirmed that at present the Central Bureau of Statistics is considering whether it is possible to keep up to date the number of transformations of marriages into registered partnerships followed by the dissolution of the registered partnership by the common consent of the parties throughout the country. 3 Matrimonial property law 3.1 The current situation The Netherlands remains the last country in the world where the universal community of property has remained until the 21st century as the legal regime regulating matrimonial property.42 According to its apologists, it is a Dutch national monument.43 Its adversaries, however, would like to see it become a gravestone as soon as possible. The universal community of property is regulated in the Civil Code (Title 7 of Book 1). However, it is still called ‘law on matrimonial property’, and is extrapolated to registered partnerships. 44 According to Art. 1:94 the totality of assets and debts acquired before and during the marriage fall within the community.45 Donated and inherited assets follow the same course, unless the donor or testator explicitly excludes this.46 Only a special category of assets closely attached to the person of one of the spouses is not included within the community47. Each of the spouses has a right to manage the assets, which he/she has brought into the community scheme. Some transactions like the disposition of the family home or donations, exceeding the value of ordinary gifts; require the consent of the other spouse (Art. 1:88). The creditors can levy execution on the whole of the common property both for the personal and the common debts of the spouses. If the marriage is terminated by death or divorce the community property is divided equally. The spouses can enter into a prenuptial agreement 48 at the time of concluding the marriage and during the marriage itself,49 but in the latter case, the approval of the 39. Letter by the State Secretary of Justice on 5 March 2002; Second Chamber 2001/2002, 28 000, no. 57. 40. Second Chamber 2000/2001 no. 1700. 41. Keeping in mind the statistics in section 1.2 of this report it can be argued that this statement is far from convincing. 42. The universal community of property was introduced throughout the whole of the Netherlands in 1938. 43. See Luijten, E., ‘Panta rhei, ook in het huwelijksvermogensrecht’, WPNR 6432, p. 96. 44. Art. 1:80b. There is no special regulation for the property relations of those who are neither married nor have entered into a registered partnership. See on this issue: Schrama, op.cit. (note 4). 45. However, certain pension rights remain outside the community of property (Art. 1:94/3), they have to be divided between the spouses upon divorce (Art. 1:155). 46. These exceptions are made in the majority of wills and donations. 47. For more on this issue see: Mourik, M., van/Verstappen, L., Nederlands vermogensrecht bij echtscheiding (1997), p. 128-170. 48. About 28% of spouses made use of this possibility in 1996. See Mourik, M., van, ‘De ontwikkelingen in de praktijk der huwelijksvoorwaarden’, WPNR 6302, p. 117
ANTOKOLSKAIA/BOELE-WOELKI courts is required. 50 They can thereby choose between one of three models described in the code, 5I or regulate their property relations, with some lim itations, 52 as they wish. 53 The prenuptial agreement has to take the form of a notarial deed and to be entered in a matrimonial property register. 54 3.2 Matrimonial property law underreview The a bove oversimplified picture of Dutch matrimonial property law does not of course reflect the complex dilemmas of the current Dutch matrimonial property law. It is no exaggeration to say that the whole system is now in a transitional state. The impulse for rev ision was provided in 1995 during a parliamentary debate concerning the Bill on the registered partnership. 55 Subsequently the Govemment decided that the revision should proceed in three steps. 56 The first step has already been com pleted. The Bill of 31 May 2001 on the rights and the duties of the spouses and registered partners 7 brought about some long-a waited amendments primarily related to restrictions re garding the making or altering of postnuptial agreements during the marriage. The wa iting period (one year after the conclusion of the marriage) for making or altering of such a contract during the marriage has now been d ispensed with Desp ite some proposals for change, the need for postnuptial agreements to be judicially approved has been preserved. However, the spouses or registered partners have been released from the duty of stating that they have reasonable grounds for entering into or altering such an agreement. They also no longer need to be legally represented in such a procedure, 9 which makes it financially less prohib itive. Unfortunately, the proposal to abolish the joint and several liabilities of the spouses and registered partners, wh ich was in itially an integral part of the bill was withdrawn. 60 The second step concems the modification of one of the models for the contractual regime of matrimonial property law. the community with a compensation 49. In the latter case it i a postnuptial agreement. The Dutch legal terminology does not differentiate between prenuptial and postnuptial agreements Those three models are: community of benefts and income(gemeenschap ran vruchten en inkomnste ommunity of gain and loss (gemeenschap van wist and verlies), and separation with a ompensation mechanism(wettelijk dee/genootschap). All three are hardly ever used in practice 52. The provisions of prenuptial agreements may not nfrnge good morals, public order and the mandatory rules of law. As to the last mentioned, there are very few mandatory prow sions Imiting the ontractual freedom of the spouses(Art. 1: 121). For more on this issue see C. Assers handeling tot eoefening van het Nederlands Burgerlijkrecht Personen-en familierecht(1998),. 298-301 55. Second Chamber 1995/96, 23761, no. 7, p 7 56. Second Chamber 2000/2001, 27 084, nos. 1-3. For more details see: Verstappen, L, " Uitgangspunten or een nieuw Nederlands wettelijk steel inzake het huweliksvermogensrecht en de wijze van tostandkomng: in: Boele- Wolki, K,(ed)Algehele Gemeensdhap 58 See for instance Rieter, A, Voorstellen met betrekking tot het bas isstelsel, het goedkeuringsvereit de infommatieplicht tussen echtgenoten en de openbare toegankelijkheid van het huwelijksgoederen register, in: Boele-Woelki, K, (ed ), op cit (note 56), p 84 59 For more on this issue Verbeke, A, Huwelijksvermogensrecht voor een nieuwe eeuw, NJB 2001, p 1988-1991
ANTOKOLSKAIA/BOELE-WOELKI 62 courts is required.50 They can thereby choose between one of three models described in the code,51 or regulate their property relations, with some limitations, 52 as they wish.53 The prenuptial agreement has to take the form of a notarial deed and to be entered in a matrimonial property register.54 3.2 Matrimonial property law under review The above oversimplified picture of Dutch matrimonial property law does not of course reflect the complex dilemmas of the current Dutch matrimonial property law. It is no exaggeration to say that the whole system is now in a transitional state. The impulse for revision was provided in 1995 during a parliamentary debate concerning the Bill on the registered partnership.55 Subsequently the Government decided that the revision should proceed in three steps.56 The first step has already been completed. The Bill of 31 May 2001 on the rights and the duties of the spouses and registered partners57 brought about some long-awaited amendments primarily related to restrictions regarding the making or altering of postnuptial agreements during the marriage. The waiting period (one year after the conclusion of the marriage) for making or altering of such a contract during the marriage has now been dispensed with. Despite some proposals for change,58 the need for postnuptial agreements to be judicially approved has been preserved. However, the spouses or registered partners have been released from the duty of stating that they have reasonable grounds for entering into or altering such an agreement. They also no longer need to be legally represented in such a procedure, 59 which makes it financially less prohibitive. Unfortunately, the proposal to abolish the joint and several liabilities of the spouses and registered partners, which was initially an integral part of the bill, was withdrawn.60 The second step concerns the modification of one of the models for the contractual regime of matrimonial property law: the community with a compen sation 49. In the latter case it is a postnuptial agreement. The Dutch legal terminology does not differentiate between prenuptial and postnuptial agreements. 50. The same approval is required for amending an existing prenuptial agreement. 51. Those three models are: community of benefits and income (gemeenschap van vruchten en inkomsten), community of gain and loss (gemeenschap van winst and verlies), and separation with a final compensation mechanism (wettelijk deelgenootschap). All three are hardly ever used in practice. 52. The provisions of prenuptial agreements may not infringe good morals, public order and the mandatory rules of law. As to the last mentioned, there are very few mandatory provisions limiting the contractual freedom of the spouses (Art. 1:121). For more on this issue see C. Asser’s handeling tot beoefening van het Nederlands Burgerlijk recht. Personen- en familierecht (1998), p. 298-301. 53. See Asser/De Boer, op.cit. (note 52), p. 331. 54. The huwelijksgoederenregister. 55. Second Chamber 1995/96, 23 761, no. 7, p. 7. 56. Second Chamber 2000/2001, 27 084, nos. 1-3. For more details see: Verstappen, L., ‘Uitgangspunten voor een nieuw Nederlands wettelijk stelsel inzake het huwelijksvermogensrecht en de wijze van totstandkoming’, in: Boele-Woelki, K., (ed.) Algehele Gemeenschap van goederen: afschaffen!? (2001), p. 23-24. 57 Staatsblad 2001, 275. In force since 22 June 2001. 58 See for instance Rieter, A., ‘Voorstellen met betrekking tot het basisstelsel, het goedkeuringsvereiste, de informatieplicht tussen echtgenoten en de openbare toegankelijkheid van het huwelijksgoederen - register’, in: Boele-Woelki, K., (ed.), op.cit. (note 56), p. 84. 59 For more on this issue Verbeke, A., ‘Huwelijksvermogensrecht voor een nieuwe eeuw’, NJB 2001, p. 1988-1991. 60 Ibid