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Pensions and Divorce: a Comparative Study of the Legal Position in Various European Countries
Published online by Cambridge University Press: 21 May 2009
Extract
Must pension claims or rights be included in the division of assets constituting part of a “total community of property” (i.e., the matrimonial property, all of which is held jointly by the spouses under the statutory provisions obtaining where no arrangements to the contrary are made at the time of marriage) upon the dissolution of a marriage? This important question was recently answered by the Hoge Raad [Dutch Supreme Court] on 27 November 1981, NJ [Nederlandse Jurisprudentie – Dutch Law Reports] (1982) p. 503. In the case which the Hoge Raad had to consider, the total community of property had been dissolved as a result of a judicial separation. Among the assets contributed to the community by the husband were all the shares in an N.V. (public company), of which he was also the managing director. The N.V. had agreed to grant certain pension rights to the husband in his capacity as managing director. These rights consisted of: (a) an old age pension of Dfl. 8,000 per annum (with a widow's pension of Dfl. 5,600 per annum), commencing when the husband attained the age of 60 (1 May 1974) and ending on the date he reached the age of 65 (1 May 1979); to provide for the pension, which the N.V. retained under its own management, a sum of Dfl. 104,000 was allocated to reserves on 31 December 1970; (b) an old age pension of Dfl. 16,430 per annum (with a widow's pension of Dfl. 8,230 per annum) commencing on the date the husband attained the age of 65 (1 May 1979); this pension was built up from 1950 onwards and was substantially increased on 1 April 1979, when it was also transferred to a life assurance company.
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References
1. Unless otherwise stated, all the articles quoted are from Book 1 of the Netherlands Civil Code.
2. Zeben, Van, Parl. Gesch. [Parliamentary History] Book 1, Civil Code, p. 1187Google Scholar.
3. References in this article to pension claims or pension entitlement are intended to cover pension rights as well, unless it is clear from the context that this is not so.
4. Article 153 reads as follows:
(1) If as a result of a petition for divorce an existing prospect of benefits to the other spouse (i.e., the respondent) would be lost or substantially reduced if the spouse who has lodged the petition were to predecease the other spouse, and the other spouse enters a defence to the petition on that ground, the petition may not be granted before such provision has been made in that respect as can, in view of the circumstances of the case, be deemed to be equitable with regard to both spouses. The court may specify a period for this purpose.
(2) Paragraph 1 shall not apply:
a. if it is reasonable to expect that the other spouse is himself/herself able to make adequate provision for that eventuality;
b. if the permanent breakdown of the marriage is predominantly attributable to the other spouse.
Article 157reads as follows:
(1) When giving the divorce judgment or any later judgment, the Court may, upon the application or request, as the case may be, of a spouse who has insufficient income for his or her maintenance and who cannot reasonably be expected to obtain a sufficient income, order that the other spouse pay a specific sum as maintenance to such spouse.
(2) In determining the amount of the maintenance, the Court may take account of the need for a provision for maintenance in the event of the death of the person obliged to pay the maintenance.
(3) The grant of the maintenance may be made for a specific period and subject to specific conditions.
5. I shall limit myself to divorce in this connection.
6. Cf., Leeuwarden Court of Appeal, 3 October 1979, NJ 1980 No. 310.
7. For the text of the parliamentary history, use has been made of the loose-leaf edition: Echtscheiding. Wet herziening echtscheidingsrecht [Divorce. Matrimonial Law Revision Act], Boekerij, Vuga ed. Dijk, H.S. and Lukàcs, E., pp. 1–47/48Google Scholar.
8. See n. 7 with regard to the source consulted, pp. 1–67.
9. See 41 NJB (1983) p. 1329 et seq.
10. Fay v. Fay (1982) 2 ALL ER 922. For a commentary on this judgment, reference should be made to Bryan F. Boulter, LLB, Section 3 of the Matrimonial Causes Act 1973 and Exceptional Hardship, 13 Family Law (1983) p. 51 et seq.
11. For criticism of the proposal of the Law Commission, see Bailey, Suzanne, “The Three-Year Rule – Recommendations of the Law Commission” 13 Family Law (1983) pp. 38–39Google Scholar.
12. John, Ekelaar, Family Law and Social Policy (London, 1978), p. 126 et seqGoogle Scholar.
13. Julian v. Julian, (1972) The Times, 4 10. 116 Sol. Jo. 763Google Scholar.
14. Le Marchant v. Le Marchant (1977) 3 All ER 610, CA.
15. The text of section 10 of the Matrimonial Causes Act 1973 is as follows:
(1) Where in any case the Court has granted a decree of divorce on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years' separation coupled with the respondent's consent to a decree being granted and has made no such finding as to any other fact mentioned in section 1(2) above, the Court may, on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.
(2) The following provisions of this section apply where
a. the respondent to a petition for divorce in which the petitioner alleged two years' or five years' separation coupled, in the former case, with the respondent's consent to a decree being granted, has applied to the court for consideration under subsection (3) below of his financial position after the divorce; and
b. the Court has granted a decree on the petition on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years' or five years' separation (as the case may be) and has made no such finding as to any other fact mentioned in section 1(2) above.
(3) The Court hearing an application by the respondent under subsection (2) above shall consider all the circumstances including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first; and, subject to subsection (4) below, the Court shall not make the decree absolute unless it is satisfied:
a. that the petitioner should not be required to make any financial provision for the respondent, or
b. that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.
(4) The Court may if it thinks fit make the decree absolute notwithstanding the requirements of subsection (3) above if:
a. it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and
b. the Court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the court may approve.
16. See also Bromley's, Family Law (1981), pp. 235–236Google Scholar.
17. Para. 623 Abs. III, first sentence, ZPO, reads as follows: “Für die Regelung der elterlichen Gewalt über ein gemeinschaftliches Kind und für die Durchführung des Versorgungsausgleichs in den Fällen des Para. 1587b des Bürgerliches Gesetzbuches bedarf es keines Antrags.”
18. See Münchener Kommentar zum Bürgerlichen Gesetzbuch. In sieben Bänden, herausgegeven von K. Rebmann und F. Säcker, Band 5: Familienrecht (Munich, 1978) p. 708, Rz. 73.
19. Asser-De Ruiter II (1982), p. 285.
20. See note 7 with regard to the source consulted, pp. 1–196.
21. Asser-De Ruiter II (1982), p. 285.
22. Asser-DeRuiterII(1982), p. 291.
23. See Münchener Kommentar, p. 815 et seq.
24. See Martyn, John G. Ross, The Modern Law of Family Provision, p. 22Google Scholar.
25. For detailed comment on this, see münchener Kommentar, p. 770; Schwab, D., Handbuch des Scheidungsrecht (1977), p. 136 et seq.Google Scholar;Rolland, W., Das neue Ehe- und Familienrecht:1. EheRG; Kommentar zum 1. Eherechtsreformgesetz, p. 396 et seqGoogle Scholar.
26. As regards the question whether apportionment must be made where there is a marriage contract excluding any community of property or where there is an apportionment proviso, see Mourik, Van, Handboek voor het Nederlands vermogensrecht bij echtscheiding [Guide to Dutch matrimonial property law upon divorce] (1983), pp. 288–289Google Scholar.
27. See in this context consideration 13 of the Supreme Court, 27 November 1981, NJ 1982 No. 503.
28. For detailed account of this, see the author's dissertation, Het moderne vermogensrechtelijke echtscheidingsrecht [Modern Dutch Matrimonial Property Law upon Divorce] (1981), p.93 et seq.
29. See Miller, J.G., Family property and financial provision 2nd edn. (1983) p. 247Google Scholar, and Cretney, S.M., Principles of Family Law 3rd edn. (1979) p. 304Google Scholar.
30. Law Commission Reports, Family Law: Report on Financial Provision in Matrimonial Proceedings (1969) at 114Google Scholar.
31. Bromley's, Family Law (1981), p. 554Google Scholar.
32. For an exposition of “VAHRG”, reference should be made to DrHahne, M.M. and Glockner, R., “Das Gesetz zur Regelung von Härten im Versorgungsausgleich”, FamRZ (1983) p. 221 et seqGoogle Scholar., and Gutdeutsch, W. and Lardschneider, U., “Probleme der neuen Ausgleichformen des Gesetzes zur Regelung von Härten im Versorgungsausgleich”, FamRZ (1983) p. 845 et seqGoogle Scholar.
33. Kroder-Ryssel, , Scheidung, Guterrecht, Unterhalt, elterliche Gewalt, Versorgungsausgleich, Hausrat, Prozess nach dem neuen Eherechtsreformgesetz, p. 163Google Scholar.
34. See Münchener Kommentar, p. 1024, Rz. 17.