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Pension

The equalisation of pension rights stands apart of matrimonial property regime. Therefore, the pension rights to be equalized are not part of the matrimonial property according to the Dutch law Equalisation Pension Rights in case of Separation (Wvps). Pension rights are equalized in case of divorce, separation from bed and board and the ending of a registered partnership. Unless otherwise agreed upon in a prenuptial agreement or in a divorce settlement agreement, old-age pension accrued by the both of you during marriage will be divided between the both of you according to the Dutch law Equalisation Pension Rights in case of Separation (Wvps). Therefore, it is always recommendable to contact the relevant pension provider(s) to find out what pension rights have been accrued (retirement pension, partner pension, reversionary pension). The pension provider(s) can explain you exactly what division is best for both of you and can also inform you about the wording you can record in your divorce settlement agreement, in order to prevent unnecessary problems once the divorce has been finalized. The right to equalization of pension rights is a direct claim on the pension provider who pays out pension or pays out pension as of the pensionable age. Please note that the pension provider needs to be notified within 2 years after the divorce about the divorce and date of divorce (i.e. the moment the decree of divorce or the decree of separation from bed and board is registered) by completing an established form, which can be requested from the pension provider.

What happens to my pension rights if I do not notify the pension provider about the divorce by completing the form within two years?

Should the aforementioned condition (notifying the pension provider about the divorce date within two years by completing the established form) not be met, there will be no claim to payment on the pension provider. The person entitled to equalization will have a claim to payment on the pensioner on the commencing date of pension.

Which pension does not fall within the scope of Dutch law Equalisation Pension Rights in case of Separation (Wvps)?

The following pensions do not fall within the scope of the Dutch law Equalisation Pension Rights in case of Separation (Wvps): General Old Age Pensions (AOW), Widows and Orphans Benefits (AWW), General Disablement Benefits (AAW), disability pension and Voluntary early retirement benefit (VUT)

Also the special Widows and Orphans Benefits are not equalized. This benefit does not fall within the community of goods. This benefit belongs to the private capital of the spouse entitled to it.

I have accrued pension rights abroad. Do these pension rights fall within the scope of Wvps?

Foreign accrued pension rights do fall within the scope of Wvps. However, the foreign accrued pension rights need to result from the employment conditions. Unlike local accrued pension rights, the person entitled to equalization of the pension rights does not have a claim to payment on the foreign pension provider but on the pension holder.

Am I still entitled to equalization of the pension rights if I marry someone else?

Yes, the right to equalization of the pension rights only ceases in the following cases:

  • decease of the pension holder ;
  • decease of the person entitled to equalization of pension rights. The right to claim for payment ends at the end of the month of decease;
  • after a written communication to the relevant pension provider(s) stating you have remarried each other or have reconciled in case of separation from bed and board.

We do not want to divide our accrued pension rights. How can we formulate that in our divorce settlement agreement?

You can mention in your divorce settlement agreement that you waive your right to equalization of pension rights. It is advisable to contact the pension provider(s) with respect to the right wording and prevent that you will not have a claim for payment on the pension provider.

By prenuptial agreement we have agreed not to equalize our General Old Age Pensions (AOW) in case of divorce, but we would like to abandon that agreement, is that allowed?

In the divorce settlement agreement you are allowed to derogate from the agreement like mentioned in the prenuptial agreement. Also here, it is advisable to contact the pension provider in order to find out the best solution and the correct wording to be recorded in the divorce settlement agreement.

In case both of you have come to the agreement that the pension does not fall in the community of goods in a prenuptial agreement, which has been formulated before May 1st, 1995, you should take into account that due to the establishment of the Dutch law Equalisation Pension Rights in case of Separation (Wvps), the accrued General Old Age Pensions (AOW) still need to be divided between you and your future ex-partner. Should both of you still do not wish to divide your accrued pension rights; you must record this agreement in the divorce settlement agreement.

Are we allowed to derogate from the Dutch law Equalisation Pension Rights in case of Separation (Wvps) when we divorce?

Yes, you are allowed to derogate from the Wvps on the following:

  • you are allowed to come to another apportionment than 50/50;
  • you are also allowed to alter the period of accrued pension rights according to Wvps. For example, you are allowed to mention some years of accrued pension during the marriage or include the period before you were married;
  • you can also convert your claim on a part of the General Old Age Pensions (AOW) and reversionary pension to a personal General Old Age Pension. This conversion requires written consent of the pension provider.

The pension provider needs to receive a certified copy or an extract with respect to the derogating agreement in order to execute the agreement settled by the both of you.

In order to prevent future misunderstanding it is advisable to contact the pension provider to find the solution most favourable for the both of you and the right wording of this agreement to be recorded in the divorce settlement agreement.

Does equalization of pension rights have fiscal consequences?

Equalization of pension rights does not have fiscal consequences. Only received pension benefits are taxed with income tax. Conversion of pension rights also doesn’t have fiscal consequences.

 

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Photography: Christina Stoian