طلاق کان پوءِ خانداني گهر: ڪير رهي ٿو، ڪير ڇڏي ٿو ۽ ڪير ادا ڪري ٿو

After a Dutch divorce, who stays in the family home is decided by ownership, by the court and by the mortgage lender, not by who changes the locks first. Neither spouse may put the other out without a court decision, even a sole owner; the exceptions are a provisional measure under Article 822 of the Dutch Code of Civil Procedure (Rv) while the divorce runs, the six-month right of continued use under Article 1:165 of the Dutch Civil Code (BW), and a temporary domestic exclusion order by the mayor in case of danger.

After that, the question becomes one of division: one of you buys the other out, or the house is sold. Below we explain each step, from ownership to the release from the mortgage.

Who owns the home?

That depends on when you married and whether you made prenuptial agreements (huwelijkse voorwaarden). For marriages and registered partnerships from 1 January 2018, the default is the ملڪيت جي محدود ڪميونٽي (beperkte gemeenschap van goederen).

Under Article 1:94 BW, property each of you owned before the marriage stays private, and gifts and inheritances are excluded from the community. A house one of you bought before the wedding therefore does not become joint because you both lived in it and paid towards it. For marriages before 1 January 2018 without prenuptial agreements, the old full community applies: in principle everything falls into one estate, the family home included.

Where prenuptial agreements were made, they decide which estate the house belongs to and what compensation is owed between the estates. Ownership does not settle occupation, though. Changing the locks or removing the other’s belongings is an unlawful act under Article 6:162 BW and can be reversed in interim relief proceedings (kort geding) within days.

Who may live in the home while the divorce is pending?

The court decides, on request, as a provisional measure. Under Article 822(1)(a) Rv, it can grant one spouse exclusive use of the matrimonial home for the duration of the proceedings and order the other to leave.

The request can be filed with the divorce petition or separately, and it is heard quickly. Under Article 826 Rv, provisional measures in principle lapse when the divorce decision is registered. In practice the arrangement they create often survives into the final settlement, especially where children have settled into a routine. See our article on طلاق جي ڪارروائي ۾ عارضي قدم.

Where there is violence or a threat of it, the mayor can impose a temporary domestic exclusion order (huisverbod) for ten days, extendable to four weeks, under the Wet tijdelijk huisverbod. That is a separate public-law measure with its own test.

Can you stay for six months after the divorce?

Only if the court grants it. Under Article 1:165 BW, the spouse who lives in the home when the divorce decision is registered may continue to live there for six months after registration, against reasonable compensation, if the home belongs wholly or partly to the other spouse or is at that spouse’s disposal.

The court decides on request, in the divorce decision or later. The six months run from registration in the civil register, not from the hearing or the day one of you left. During that period, a transaction by the other spouse without your consent cannot be used against your right of use (Article 1:165(2) BW).

A spouse who has already moved out cannot use this provision. Six months is short by design: it buys time to arrange finance, find housing or complete a sale, but it does not decide who ends up with the house.

What does the court weigh when deciding who stays?

All the circumstances, with the interests of minor children usually weighing heaviest. The court considers which parent the children mainly live with, the distance to school, and the disruption a move would cause.

The court also tests whether the arrangement is workable: does the other spouse have somewhere to go, and can the one who stays carry the mortgage, utilities and maintenance alone? A parent who argues that the children need the home but cannot show that the monthly costs can be met is unlikely to succeed. Safety concerns and documented conflict also count. If you both stay in the house for a while, read our note on الڳ ٿيڻ کان پوءِ گڏ رهڻ.

Do you pay for using the home?

Usually, if the house is jointly owned or financed. Under Article 1:165 BW reasonable compensation is part of the right itself; outside that provision, each co-owner may use a shared asset only in a way compatible with the rights of the others (Article 3:169 BW), and courts can award a use compensation (gebruiksvergoeding).

There is no statutory formula. Courts take into account who pays the mortgage interest, the owner’s costs and maintenance. Compensation is generally awarded from the moment it is claimed, so a late claim can mean money lost. Present the housing arrangement together with any maintenance calculation, because the same monthly capacity cannot be counted twice.

How does a buyout work?

In four steps: valuation, equity calculation, the lender and the notary. The lender’s decision is usually the one that decides the outcome.

• مول: normally a valuation report (taxatierapport) by a registered valuer, agreed jointly, or by two valuers who appoint a third if they differ.
• عقل the agreed value minus the mortgage debt, adjusted for compensation claims between the estates and for savings or investment accounts linked to the mortgage.
• قرض ڏيندڙ: the remaining spouse must qualify for the full mortgage alone, and the departing spouse needs a written release from joint and several liability (ontslag uit de hoofdelijke aansprakelijkheid).
• نوٽري: جي سول قانون جي نوٽري executes the deed of transfer, and registration at the Land Registry (Kadaster) completes the transfer.

Only the lender can grant the release; no court can order a bank to do so. Until the release is given in writing, the spouse who moved out remains liable for the entire debt, whatever the settlement agreement says. Make a buyout conditional on the release and set a longstop date.

What if your ex-partner refuses to cooperate?

No one has to remain a co-owner. Under Article 3:178(1) BW any co-owner can demand division at any time, and under Article 3:185 BW the court determines how the property is divided if you cannot agree.

Where one co-owner obstructs a sale, the court can authorise the other to sell the property for weighty reasons (Article 3:174 BW). Under Article 3:300 BW, a judgment can take the place of the missing signature on the sale documents. Such orders are often backed by a penalty payment (dwangsom). The court wants to see what has been tried: correspondence, a valuation, a concrete offer and the cost of delay.

Refusal without a reason of substance can be an abuse of right under Article 3:13 BW, and deliberate obstruction can lead to liability under Article 6:162 BW if the loss is proven item by item. On the other side, under Article 3:178(3) BW the court can exclude division, each time for at most three years, if the interests harmed by immediate division are considerably greater than those served by it. The interests of young children are the reason most often put forward.

How are the equity and a residual debt divided?

A community of property is divided in equal shares under Article 1:100 BW, unless prenuptial agreements or a written agreement between the spouses provide otherwise. Net proceeds after repaying the mortgage and sale costs are split equally, and a residual debt (restschuld) in the same proportion.

Where private money was used for a jointly owned house, or joint money for a private one, the estates owe each other compensation (vergoedingsrecht). Under Article 1:87 BW this compensation is in principle proportional to the value of the property, not a flat repayment of the sum paid.

A residual debt does not disappear on divorce, and the lender is not bound by your internal split. Under Articles 6:10 and 6:13 BW, the share of a joint debtor who cannot pay is spread over the others, so a solvent ex-spouse can end up paying it all with only a paper right of recourse. Concealing a joint asset has a hard sanction: under Article 3:194(2) BW the spouse who deliberately conceals it forfeits his or her share in it.

جيڪڏهن توهان گهر ۾ رهڻ چاهيو ٿا ته توهان کي ڇا چيڪ ڪرڻ گهرجي؟

• Have you requested exclusive use under Article 822 Rv, and the six-month right under Article 1:165 BW, in time?
• Can you show that you can carry the mortgage, owner’s costs and utilities alone?
• Has the lender confirmed in principle that you qualify for the full mortgage?
• Do you have an agreed valuation report?
• Have you calculated the use compensation you may owe?

What should you check if you are moving out?

• Have you recorded the arrangement in writing, stating that it is without prejudice to the division?
• Have you claimed use compensation in writing from the date you left?
• Is the buyout conditional on a written release from the lender, with a longstop date?
• Do you have the mortgage statements to check that payments continue?
• Have you checked the tax consequences with a tax adviser before signing?

طلاق جي صورت ۾ خانداني گهر سان اسان توهان لاءِ ڇا ڪري سگهون ٿا؟

اسان طلاق جا وڪيل ۽ خانداني قانون ٽيم in Eindhoven ۽ Amsterdam handle all housing questions in a divorce. The cost of the divorce itself is usually small next to the value of the house.

• We request provisional measures on the home under Article 822 Rv and the six-month right under Article 1:165 BW.
• We calculate the equity, compensation claims between the estates and any use compensation.
• We draft the buyout and settlement agreement, conditional on the lender’s release.
• We start proceedings for division, authorisation to sell and a judgment replacing a missing signature.
• We start interim relief proceedings if you are locked out of the home.

خلاصو

• No spouse may put the other out without a court decision, even a sole owner.
• During the divorce, the court can grant exclusive use under Article 822 Rv; afterwards, six months of continued use under Article 1:165 BW.
• A buyout depends on the lender: only the bank can release the departing spouse from the mortgage.
• If one spouse refuses to cooperate, the court can order division, authorise a sale and replace a missing signature.
• A community is divided equally, and a residual debt remains owed to the lender by both of you.

وچان وچان سوال ڪرڻ