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.
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.
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.
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.
Yes, the right to equalization of the pension rights only ceases in the following cases:
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.
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.
Yes, you are allowed to derogate from the Wvps on the following:
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.
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.
Photography: Christina Stoian