Prenuptial Agreement with a Settlement Clause: What If You Never Executed It?

You Have a Prenuptial Agreement, But You Never Actually Settled Accounts

Many couples opt for a prenuptial agreement when they marry. These often include a so-called periodic settlement clause: the obligation to divide saved income equally every year. A neat arrangement on paper.

But in practice? That annual accounting is structurally forgotten. Sometimes, after years of marriage, spouses no longer even know they entered into that obligation. And when divorce follows, the financial consequences can be enormous, unless you can demonstrate that you did in fact comply.

The 's-Hertogenbosch Court of Appeal ruled on exactly this situation on 3 April 2025.

What Happened?

The parties were married under a prenuptial agreement that included a periodic settlement clause. When divorcing, the wife claimed that no settlement had ever taken place. She invoked Article 1:141(3) of the Dutch Civil Code, a powerful legal instrument: if a periodic settlement clause has not been executed, the other party's assets are presumed to have been formed from income that should have been settled. The consequence? Full retrospective settlement of all accumulated assets.

The husband defended himself: settlement had indeed taken place annually. Both parties had deposited their income into a joint account. The savings balance on that account was divided equally each year, sometimes more frequently, by transfer to each party's individual savings accounts.

Both the district court and the court of appeal agreed with the husband.

What Did the Court Rule?

The court found that the parties' actual practice was in line with what had been agreed in the prenuptial agreement. The joint account served as the intended channel; the equal division of the savings balance was the execution of the settlement clause.

The fact that the wife had also occasionally paid household costs from her own private account? That did not undermine the system. Incidental deviations do not invalidate a structurally well-functioning system, especially when the wife could not substantiate with concrete documents that she had been disadvantaged as a result.

And the fact that the husband ultimately retained more private assets than the wife? That too was insufficient. Differences in wealth do not in themselves make a consistently executed settlement system unacceptable.

The Legal Core: Article 1:141(3) of the Dutch Civil Code

This provision comes as a surprise to many divorcing spouses, in either a positive or negative sense. It provides that if a periodic settlement clause was never executed, the other party's existing assets are presumed to have been formed from income that should have been settled. In practice, this means: everything is shared, as if you had been married in community of property.

However: that presumption only applies once it has first been established that the clause was indeed not complied with. Anyone invoking that presumption must first state and substantiate that non-compliance. In this case, the wife did not succeed in doing so.

Two Lessons for Practice

Lesson 1: A prenuptial agreement is not just a piece of paper, but only if you actually execute it.

Leaving a settlement clause in a drawer and never executing it is legally risky. Upon divorce, the court can calculate backwards over the entire marriage. That can lead to substantial payment obligations, or equally substantial claims, that you did not anticipate.

Lesson 2: Those who did execute it are in a strong legal position.

This ruling shows that a consistently executed system, even if not perfectly documented, provides protection. Clear transfers, a fixed working method, a joint account: these are the elements that convince a court.

What Should You Do Now?

• Married under a prenuptial agreement? Check whether it contains a settlement clause and whether you have executed it in recent years.
• Never settled? Discuss the consequences with a lawyer and whether you can still remedy this.
• In the middle of a divorce? Know whether you are the party wishing to invoke non-compliance, or the one who must demonstrate that settlement did take place. That position determines your strategy.
• Keep your records. Bank statements, transfers, annual overviews: they can make the difference between a favourable and an unfavourable outcome.

Case Reference

This post is based on ECLI:NL:GHSHE:2025:947.