In a Dutch divorce, the marital home is divided according to your matrimonial property regime: if it is in the community of property, each spouse is entitled to half the surplus value, valued on the date of actual division. The main exception is the bank: whatever you agree, the spouse who leaves stays liable for the whole mortgage until the lender grants a release.
This article explains who owns which share, which date determines the value, how a buyout works, and what to do if your former partner does not cooperate.
Which property regime decides your share?
For marriages concluded before 1 January 2018 without a prenuptial agreement, the default was the universal community of property (algehele gemeenschap van goederen): the house and the mortgage fell into the joint estate, whoever was on the deed. For marriages from that date, the default is the ierobežota īpašuma kopība under Article 1:94 of the Dutch Civil Code (BW), in which property owned before the marriage stays private.
The same rules apply to a registered partnership under Article 1:80b BW. A house bought jointly before the wedding does fall into the limited community. On 21 March 2025 the Supreme Court (Hoge Raad) held that the debt resulting from one partner’s larger pre-marital contribution stays outside the community, so that contribution is not halved (ECLI:NL:HR:2025:436).
If the house is in the community, Article 1:100 BW gives both spouses equal shares, unless a prenuptial agreement or a written agreement made in view of the divorce says otherwise. With a prenuptial agreement, the deed decides; a periodic settlement clause that was never carried out can still give a claim on the house under Article 1:141 BW.
Which dates determine what is divided and what it is worth?
The community ends when the divorce petition is filed (Article 1:99 BW); that date fixes what belongs to it. The value of the house, however, is determined on the date of actual division, unless you agree otherwise.
In a moving market this makes a real difference: a rise in value between separation and transfer is shared, and so is a fall. Because proceedings often take a year or more, fix the valuation date in the divorce settlement (echtscheidingsconvenant).
What are the options for the house?
There are three: one spouse takes over the house and buys out the other (toedeling), the house is sold and the net proceeds are divided, or you remain joint owners for a while. The third option is risky, because neither of you is released from the mortgage and either can demand division at any time under Article 3:178 BW.
In practice, two facts usually decide: whether one spouse can carry the mortgage alone on the bank’s terms, and whether the house is worth more or less than the mortgage.
How is a buyout calculated?
Start with the surplus value (overwaarde): the market value at the valuation date minus the outstanding mortgage. In a community of property, each spouse is entitled to half, and the spouse who keeps the house pays that half to the other.
That figure is then adjusted. Reimbursement claims for private money come off first. Linked savings or investment policies are separate community assets and are not automatically deducted from the debt. Mortgage payments made by one spouse since the separation are usually settled against a use fee (gebruiksvergoeding) owed by the spouse who lives in the house.
When does the bank release the departing spouse?
Both spouses are jointly and severally liable (hoofdelijk aansprakelijk) for the whole mortgage, and divorce does not change that. The departing spouse is released only if the lender agrees, which it does only if the remaining spouse passes the affordability test on one income.
If the loan has a National Mortgage Guarantee (Nationale Hypotheek Garantie, NHG), its conditions apply as well. Make the takeover in your settlement conditional on the release, with a fixed period and an agreed sale if the bank refuses. Until the release is granted, the departing spouse remains liable for any arrears, and a missed payment is registered in both names.
Can you get back private money you put into the house?
Yes, if you can prove it. If you paid the deposit, mortgage repayments or a renovation with private money, such as an inheritance with an exclusion clause or savings from before a post-2018 marriage, you have a reimbursement claim (vergoedingsrecht) against the community.
Since 1 January 2012, Article 1:87 BW calculates that claim under the investment doctrine (beleggingsleer): the claim rises or falls in proportion to the value of the house. For investments before 2012, the older nominal approach may still apply, and spouses can agree otherwise.
The burden of proof is on you. Keep the deed of gift or will with the exclusion clause, the bank statement of the transfer, and the purchase contract or invoice with the date.
What if the house is worth less than the mortgage?
Negative equity is divided the same way: in a community of property, the residual debt (restschuld) is shared equally. The spouse who takes over the house takes over the whole debt, usually without a buyout payment and sometimes with a payment from the other spouse.
With an NHG-guaranteed loan, the guarantee scheme may cover part of the residual debt after a forced sale, on its own conditions. Involve the lender before you sell.
Can the court depart from the equal split?
Only in highly exceptional cases. That one spouse earned more, paid more or behaved badly is not enough to deviate from Article 1:100 BW.
There is one statutory route that does work. Under Article 3:194(2) BW, a spouse who deliberately conceals or hides a community asset forfeits their share in that asset to the other spouse. This applies, for example, to undisclosed bank accounts.
What if your former partner does not cooperate?
Any co-owner can demand division at any time. If you cannot agree, the court determines the division under Article 3:185 BW and can order the sale of the house.
If one spouse blocks a sale, the court can authorise the other to sell alone under Article 3:174 BW; in urgent cases you can ask for this in summary proceedings. A spouse who refuses viewings or rejects a reasonable offer risks paying for the delay.
Who may live in the house during and after the divorce?
During the proceedings, the court can give one spouse exclusive use of the home as an interim measure under Article 822 of the Code of Civil Procedure (Rv), often the parent with whom the children mainly live. After the divorce is registered, Article 1:165 BW lets the spouse living there stay for six months, whoever owns it.
The occupying spouse usually owes the other a use fee, often set off against the mortgage payments. Our article on kas paliek ģimenes mājās to sīkāk izskaidro.
Kādas ir nodokļu sekas?
Allocating the marital home to one spouse in the division of the community is exempt from property transfer tax (overdrachtsbelasting). The spouse who moves out can keep the mortgage interest deduction for the former home for up to two years after moving out, provided the former partner still lives there and other conditions are met. Have a tax adviser check the figures before you sign.
Kas jāpārbauda, ja vēlaties paturēt māju?
- Whether the lender will release your former partner on the basis of your income alone.
- Whether the valuation date and the appraiser are agreed in writing.
- How linked savings or investment policies are dealt with in the buyout.
- Whether your private contributions are documented, to support a reimbursement claim under Article 1:87 BW.
- What use fee you owe for the period since the separation.
What should you check if you are leaving the house?
- Whether the settlement makes the takeover conditional on your release from joint and several liability, with a deadline.
- Whether the house will be sold if the bank refuses the release.
- Whether the mortgage is being paid each month until the release is granted.
- Whether you receive a use fee for your share of the house.
- How long you can still deduct mortgage interest on the former home.
What can we do for you with dividing the marital home?
mūsu ģimenes tiesības komanda un šķiršanās advokāti advise Dutch and international clients on the property side of a divorce.
- We establish which property regime applies and whether the house is in the community.
- We calculate the buyout amount, including reimbursement claims and use fees.
- We draft the clauses on the house in your divorce settlement, including the condition of release by the bank.
- We apply for exclusive use of the home as an interim measure under Article 822 Rv.
- We ask the court to order the division or authorise a sale under Articles 3:185 and 3:174 BW.
Kopsavilkums
- Your matrimonial property regime decides whether the house is shared; the default changed on 1 January 2018.
- The community ends when the petition is filed, but the house is valued on the date of actual division.
- The departing spouse stays liable for the mortgage until the bank grants a release.
- Private money invested can be reclaimed under Article 1:87 BW, if you can prove it.
- If your former partner blocks the division, the court can order a sale or authorise you to sell alone.
Biežāk uzdotie jautājumi
Does it matter whose name is on the deed?
Not if the house is in the community of property: then each spouse is entitled to half, whatever the deed says. For a marriage from 1 January 2018, a house one spouse owned alone before the wedding stays private, so the deed then matters.
Vai māja vienmēr ir jāpārdod?
No. One spouse can take over the house and buy out the other, provided the lender agrees to release the departing spouse. If neither of you can or wants to keep it, it is sold.
Ko darīt, ja mans bijušais partneris pārtrauc maksāt hipotēku?
As long as you are jointly and severally liable, the bank can claim the full amount from you. If you pay your former partner’s share, you have a claim against them, but you remain liable to the bank until you are released.
Is the house exempt from transfer tax when it is allocated to one spouse?
Yes. Allocating the marital home to one spouse in the division of the community is exempt from property transfer tax.
