Zaščita premoženja na Nizozemskem: kaj lahko posamezniki zakonito storijo

Asset protection under Dutch law means arranging ownership, your matrimonial property regime, wills and insurance lawfully and in good time, so that a future creditor can reach no more than the law allows. It does not work against a creditor who already has a claim: under Article 3:276 of the Dutch Civil Code (BW) a creditor can recover from all your assets, and under Article 3:45 BW a voluntary transaction that prejudices creditors can be annulled (actio pauliana).

This article covers private individuals: employees, professionals, homeowners, spouses and heirs. Entrepreneurs face other questions, which we discuss in our article on zaščita premoženja za lastnike podjetij. We do not give tax advice; most structures have tax consequences that a tax adviser should check before you sign.

Are you liable with everything you own?

Yes. Under Article 3:276 BW a creditor with an enforceable title can recover from any of your assets: bank balances, car, shares, holiday home and salary. Mortgagees and pledgees are paid first from their collateral, and the Tax Administration (Belastingdienst) has statutory preferences.

Protection therefore has to be built into the way an asset is held before there is a claim. Once a creditor exists, there is almost no room for lawful restructuring, and an attempt creates new risks.

What can creditors not take?

When your wages or benefits are attached, the bailiff must leave you an attachment-free amount (beslagvrije voet). Under Article 475d of the Dutch Code of Civil Procedure (Rv) it is calculated from income data in the payroll register (polisadministratie), based on your household situation.

Under Article 447 Rv some movable goods cannot be attached at all, including the household contents of the home you live in, clothing, food supplies and items needed for daily personal care. An accrued pension cannot be attached before it is paid out; once paid, it is income and the attachment-free amount applies. There is no Dutch homestead exemption: the family home is fully available to creditors, and a mortgagee can sell it at auction if you default.

How does your matrimonial property regime protect you?

For most people this is the strongest lever. Under Article 1:94 BW, for marriages and registered partnerships entered into since 1 January 2018, a limited community of property applies: assets from before the marriage and gifts and inheritances stay private, while what you build up during the marriage is shared.

Prenuptial or postnuptial agreements (huwelijkse voorwaarden), made by notarial deed before or during the marriage, can exclude any community and record who owns what. This is worth considering if one partner runs a business or works in a profession with liability risks. Our overview of Nizozemsko zakonsko pravo določa izbire.

Where does separation of property stop?

Under Article 1:96(1) BW a creditor of one spouse can recover from that spouse’s own assets and from the community, whether or not the debt fell into the community. If the debt is not a community debt, Article 1:96(3) BW limits recovery from a community asset to half the proceeds. Joint debts, such as a joint mortgage, remain fully recoverable from both partners.

A settlement clause in prenuptial agreements that is never applied is often enforced on divorce as if everything had been shared. Apply the agreement every year and keep records.

Kdaj potrebujete soglasje svojega zakonca/zakonke?

Under Article 1:88 BW a spouse or registered partner needs the other’s consent to sell, encumber or let the family home, to make unusual gifts, and to act as guarantor or joint debtor outside the normal course of their profession or business. Without that consent the other partner can annul the transaction. Where a new relationship meets old debts, see our article on nova ljubezen in stari dolgovi.

Where is the limit? The actio pauliana

Under Article 3:45 BW a creditor can annul a transaction you were not obliged to make, if it prejudiced creditors and you knew or should have known that. For a transaction for value, the other party must also have known or should have known. In a bankruptcy the trustee has the same power under Article 42 of the Bankruptcy Act (Faillissementswet).

The one-year period is not a safe harbour. Under Article 3:46 BW knowledge is presumed on both sides for certain transactions made within one year before the annulment is invoked, for example transactions at a clear undervalue or with your spouse, a relative up to the third degree or a company you control. After that year a creditor can still succeed, but must prove the knowledge. See our glosarski vnos o actio pauliana.

What happens if you go too far?

In a personal bankruptcy you must give the trustee all requested information, and removing assets from the estate is a criminal offence under the bankruptcy fraud provisions of the Dutch Criminal Code (Wetboek van Strafrecht).

There is also a practical cost. Under Article 288(1)(b) of the Bankruptcy Act the court admits you to the statutory debt restructuring scheme (Wsnp) only if you acted in good faith regarding your debts in the three years before the request. Under Article 349a of the Bankruptcy Act the scheme normally lasts 18 months and ends with a clean slate. Moving an asset away from a creditor can cost you that route.

Which instruments actually work?

A holding company protects an entrepreneur’s private assets from operating risks, but does little for a private individual without a business; see our overview of finančna varnost v okviru gospodarskega prava. Depositary receipts issued by a foundation (STAK) separate control from economic rights, but creditors can attach the receipts themselves; see our article on STAK-i in delniški certifikati.

A foreign trust is recognised in the Netherlands under the Hague Trusts Convention, but a transfer into a trust can still be annulled under Article 3:45 BW. Two simpler instruments do more work: insurance (liability, professional indemnity and legal expenses cover) and testamentary administration (bewind). Under Article 4:175 BW assets under testamentary administration can be recovered only for a limited list of debts, so a beneficiary’s own creditors generally cannot reach them.

Where does private exposure usually come from?

Most private individuals lose assets through a personal guarantee for a company loan, joint liability on a mortgage with a former partner, a tax liability as director or partner, or a tort claim. Read what you sign, obtain your partner’s written consent where Article 1:88 BW requires it, and ask for a formal release when you leave a company or relationship.

Private rental property combines building liability, strong tenant protection under Dutch zakon o najemninah and debt financing. Check the liability side before you buy.

How does a creditor reach your assets?

A creditor first needs an enforceable title (executoriale titel): a judgment, a notarial deed with an acknowledgement of debt or, for the Belastingdienst, a tax collection notice. A bailiff (gerechtsdeurwaarder) serves it and can then attach movable property, real estate or claims held by third parties, such as wages or a bank balance.

Before judgment a creditor can ask the court for leave to levy a pre-judgment attachment (conservatoir beslag), usually without hearing you. You can ask the preliminary relief judge to lift it, for example if the claim appears unsound or you offer adequate security. Under Article 3:324 BW the right to enforce a judgment lapses after 20 years; many ordinary claims become time-barred after five years unless interrupted in writing. A defended claim may also involve a separate postopek ocene škode.

When should you review your arrangements?

Review them at each life event: marriage, registered partnership or cohabitation and its end, the birth of a child (and the starševski načrt), buying a home or business, moving abroad and receiving an inheritance. Check three documents each time: your matrimonial property arrangement, your will and your insurance schedule.

Kaj morate preveriti kot zasebnik?

• Check which matrimonial property regime applies to you and whether prenuptial agreements are actually applied.
• Check every guarantee or joint debt you signed, and whether your partner’s consent under Article 1:88 BW was given.
• Check your liability, professional indemnity and legal expenses insurance and their exclusions.
• Check whether your will places gifts to vulnerable children under testamentary administration.
• Keep records that prove the origin of each asset.

Kaj morate kot upnik preveriti?

• Check whether you have an enforceable title or need a pre-judgment attachment first.
• Check transfers by the debtor in the past year for the presumptions of Article 3:46 BW.
• Check whether the debtor is married and which assets are community assets (Article 1:96 BW).
• Interrupt the limitation period in writing before it expires.

What can we do for you with asset protection?

naše zasebnih strank ekipa in naša svetovanje za družinsko pisarno practice act for individuals and, on the other side, for creditors:

• We review your matrimonial property arrangement and coordinate new agreements with a civil-law notary.
• We assess guarantees and joint debts and check whether the consent rules of Article 1:88 BW were met.
• We draft the instructions for testamentary administration in your will together with the notary.
• We apply to the court to lift an unjustified pre-judgment attachment.
• We defend you against, or bring, a claim based on the actio pauliana.

Povzetek

• Under Article 3:276 BW creditors can recover from all your assets; protection must be arranged before a claim exists.
• The attachment-free amount (Article 475d Rv) and Article 447 Rv protect a minimum, not your lifestyle.
• Your matrimonial property regime is the strongest lever, but Article 1:96 BW limits what it shields.
• Transfers that prejudice creditors can be annulled under Article 3:45 BW, with presumptions for the year before (Article 3:46 BW).
• Insurance and testamentary administration (Article 4:175 BW) often protect more than complex structures.

Pogosta vprašanja