More and more couples are choosing not to marry. They move in together, in some cases have children and often build up assets together. When these unmarried cohabitants split up, it turns out that they have a lot of trouble settling their affairs. The rules that apply in a divorce or dissolution of a registered partnership generally do not apply to unmarried ex-partners. Less legal protection applies to them. You can read here what does apply to them and how best to separate.
What can we help you with?
Are you not married and do you not have a registered partnership, but did you and your ex-partner live together and are now separating? On this page, we provide answers to most of your questions. If you have further questions after reading this information, or if you need advice or assistance with the legal settlement of your relationship, please feel free to contact us.
Our lawyers have more than 15 years of experience in Dutch and international family law and will be happy to help you. They can tell you where you stand, both legally and fiscally. In this way, you will not be faced with any surprises and you can conclude the termination of cohabitation in a proper way.
How do you separate if you live together?
Are you and your ex-partner separating? Then you will have a lot to arrange and make arrangements with each other. You have lived in a house together, bought things together, built up assets and possibly had children. Are you not married or registered partner and just living together? Then the process of separating depends on your situation:
- You may or may not have a cohabitation contract
- You do not have children
- You may or may not have a joint residence
Breaking up and a cohabitation contract
In a cohabitation agreement, you made arrangements with your ex-partner regarding the division of your assets and property, the care of any children, additional expenses and any spousal support. These agreements guide the steps you need to take.
If you do not have a cohabitation agreement or certain arrangements are not included in it, you still need to decide on them. Because you are not married or in a registered partnership, there are few legal obligations involved. So you can make your own arrangements about how you will separate, how your assets will be divided and what will happen with your rental or owner-occupied home. If you have children, there are legal obligations you must meet. You can read about these obligations below.
While you can make the arrangements yourself, we advise involving a mediator in this process. This mediator will guide you in the discussion and in making agreements. It helps you make decisions that both of you are satisfied with. This increases the likelihood that you can end your relationship in a positive manner.
Of course, the possibility exists that you may not agree on something, even if you ask a mediator for help. In that case, you can each ask your own lawyer for help and/or ask the judge to make a ruling.
Breaking up with children
Do your future ex-partner and you have children under the age of 18 and have joint custody? If so, you have some legal obligations if you separate. For example, you have the obligation to draw up a parenting plan and there is a right to child support.
In the parenting plan you include agreements concerning the children. For example, you lay down whether or not you have (joint) custody of the children, who the children will live with, how they will have access to the other parent, how you will organize information and consultation, and how you will arrange any child support.
As after a divorce or dissolution of a registered partnership, child support will also be an issue for unmarried cohabitants if there are children under the age of 21. For children who will live (mostly) with one parent, the other parent will in many cases have to make a financial contribution to the caring parent.
Learn more about the right to, the amount of, and arranging child support.
You are required by law to draw up a parenting plan, but because you were not married or registered partners, you do not have to submit the parenting plan to the court. You may make the arrangements together. However, it is recommended that you hire a mediator to do this. The mediator can guide you in making the arrangements so that you do not forget anything and everything is arranged properly for both parties. Do you have joint custody and are unable to reach a decision on, for example, the choice of school? Then the judge will have to make a decision. To get a decision you will first have to provide the judge with a parenting plan.
Breakup and the joint home
If you own a home together, you will need to decide together what will happen to the property. Does the house belong to you together? Then you decide that together. It is possible that specific arrangements have been made in the cohabitation contract. In that case these agreements will have to be followed. If no agreements have been made, you will have to do so when you separate.
You can first choose to sell the home. In that case you will have to divide the over- or under-value. It is important that you make proper arrangements and put them in writing.
In addition, it is possible that one of you will continue to live in the home. If that is the case, it will be necessary to examine whether the home has excess value. Surplus value exists when the value exceeds the mortgage. The partner who continues to live in the home will have to pay half of this to the departing partner. If you continue to live in the home, this means that you will have to get the mortgage in your name only. Of course, you must have permission from the mortgage lender to do so. It is therefore important to check in advance with the mortgage lender to see if you can afford this and if you will get that permission.
It is recommended that you seek the advice of a mediator or lawyer when making arrangements for a joint home. After all, you want to make sure that the agreements are made properly and fairly and that you do not forget anything in the process. In addition, it often happens that one partner has invested more assets in the joint home than the other partner, or that discussions arise about over- or underpaid expenses of the joint household. A mediator or lawyer can help you sort this out.
Breakup and a rental property
Are you and your ex-partner divorcing and living together in a rented house? Then the following also applies: any cohabitation agreement is leading. If you do not have a cohabitation contract or if it does not contain any agreements about the rental property, you will have to make arrangements at the time of your separation.
A rental property may be in the name of one of the tenants or in both names. It can also be in one name while the other is a co-tenant. It depends on your situation what the applicable rights and obligations are:
- The rental property is in your name: you have the right to continue living in the property. Your future ex-partner usually has no right to this, but the court can still assign the rental property to him/her if a child goes to live with that parent. The interest of the child then plays an important, if not decisive role.
- The rental property is in your name and your ex-partner has been accepted as a co-tenant: you both have the right to continue living in the property. If you have agreed together who will continue to live there, you must inform the landlord of this in a registered letter. Along with this you will also send a letter in which the departing tenant terminates his or her lease. In this case, the landlord may not refuse.
- The rental property is in both of your names: you both have the right to continue living in the property. You must then decide whether one of you will continue to live in the property or terminate the lease. If you have decided together that one of you will continue to live in the property, permission must be requested from the landlord. If the landlord agrees, the old rental contract will be terminated and a new contract will be signed with the person who continues to live in the home.
Are you unable to come to an agreement together on who will continue to live in the rental property? Then seek the help of a lawyer [link naar nieuwe detailpagina] or mediator [link naar herschreven detailpagina]. They can guide you in making agreements. Are you still unable to reach an agreement or do you or your ex-partner refuse to leave? Then you can go to court with a lawyer. The judge will weigh the interests and make a decision about who can continue to live in the home. Whatever the judge decides must be complied with in that case.
Dividing assets and separating
Most likely, you and your partner have accumulated assets together during your relationship. Perhaps you have a joint bank account and/or savings account. There may also be joint contents. If you break up, all of this also needs to be divided. And perhaps there are debts and/or a current loan. Then you will have to agree on who will take care of what part of this. The other will have to compensate the one who paid for this.
Do you have a cohabitation agreement? Then it probably describes how you will divide the assets built up during the relationship. If there is no cohabitation agreement or if a certain subject is not described in it, you will have to make arrangements when you separate.
To do this, first make a list of assets. Think about savings accounts, stocks, real estate, household contents, as well as debts. Do you own a car together? Then that should also be on the list. Then you will divide the assets and contents. The goal, of course, is to divide them in such a way that you are both left with roughly the same amount at the bottom of the list.
Since there are no legal obligations, you can agree on a division as you see fit. However, be aware of the tax consequences in the event that one of you receives much more than the other in terms of value.
It is possible that you and your ex-partner have differing views and cannot reach an agreement on the division. An attorney or mediator can assist in this matter. He or she will not make decisions for you but will guide you in the discussion of potential solutions. If you still cannot reach an agreement, a judge will need to be asked to make a decision. In that case, the assistance of an attorney is necessary.
Partner alimony after breakup
In principle, there is no legal obligation to pay spousal support to your ex-partner if you have not been married and have not had a registered partnership. Of course, it is possible that you have made arrangements about this in a cohabitation agreement. In that case, the arrangements in this agreement apply.
Help and legal advice
On this page we have advised a number of times to ask for help in making arrangements if your soon-to-be ex-partner and you separate. It can give you peace of mind during and after the process if you are guided through the choices or given advice about them. A mediator or lawyer supervises the talks between you and your ex-partner, with the aim of ensuring that they run smoothly so that both are satisfied with the agreements made. In addition, if necessary during the mediation, you can ask a lawyer for legal advice so that you know what choice to make. This will prevent you from finding out afterwards that things have not been settled properly, for example, because they have been delayed too long or because they have not been properly recorded in writing.
It is often thought that help from a lawyer ensures that the contact with your ex-partner is on edge. In practice we find that this is not the case, legal advice actually provides more clarity. At Advocatenkantoor Simmelink, we strive to ensure that you and your soon-to-be ex-partners can move on after the relationship has ended. This is especially true if children are involved. If not, a judge will have to make a decision. Our office can assist you in this as well.