If you are married in full community of property (before January 1, 2018) and you get divorced, all assets – barring exceptions – will be divided by halves. We are regularly asked whether the bank balances of the children’s bank accounts or the bank accounts for the children’s study expenses must also be divided. The answer is no.
In a decision (ECLI:NL:HR:2007:AZ6525) of February 9, 2007, the Supreme Court ruled that the name of a bank account is not decisive as to who the balance on that account belongs to. The intention of the parties and all the facts and circumstances must be considered.
The Den Bosch Court of Appeal, in a judgment (ECLI:NL:GHSHE:2020:3080) of Oct. 6, 2020, further fleshed out the Supreme Court’s criterion.
Case study
In this case, the parties were married in 2006 in full community of property. In 2012, their son was born for which a savings account was jointly opened in 2015. After the divorce (2016), the mother transferred the balance of the son’s savings account to her own bank account in 2019. A legal battle between parents arises over this.
In doing so, the court of appeal considered in the appeal proceedings that it follows not only from the name of the bank account but also from the intention of the parties that they would save together for their son. It was therefore explicitly not the intention of the parties to use the balance of the savings account for their own purposes. The court ruled that the balance of the savings account now withdrawn by the mother belongs to the son’s own assets and not to the dissolved matrimonial community of property to be divided.
The court refers to article 1:253l of the Civil Code which stipulates that each parent who exercises custody over his children has only the usufruct over his child’s assets. The court of appeal also refers to Article 1:253j of the Civil Code which includes the obligation of parents to have custody of their children’s assets and to perform this as good administrators.
Conclusion
It follows from this ruling that bank accounts (also) in the name of the children and/or accounts with a savings purpose for the children, do not fall within the community of property. These therefore remain outside the division in a divorce. The money belongs to the children and cannot be spent by (one of) the parents for their own purposes.
When you read the ruling, you may notice that the court rejected the father’s claim, despite the fact that the court endorsed the father’s position. This is because the father had filed the claim not on behalf of the son, but on behalf of himself. This is legally incorrect. However, this does not alter the mother’s wrongful act and the rule of law that can be inferred from this ruling.
If this situation applies to you or if you have other questions as a result of this article, the attorneys in the Law of Persons and Family Law Practice Group will be happy to advise you and help you think through possible solutions.