Who gets the house? The division of assets in a divorce

A break-up is rarely straightforward. In addition to the emotional aspects involved, practical questions soon arise, for example: what happens to the family house? For many people, the house is not only their largest joint investment, but also a place filled with memories. Nevertheless, practical decisions eventually need to be made.

In legal terms, we refer to this as the division of assets in a divorce. Although this may sound technical, in practice it comes down to something familiar: determining together who receives which assets and ensuring that the final outcome is both legally and financially balanced.

Consider the following example: a couple purchases their first house together. Over the years, they save jointly, maintain a shared bank account and perhaps build up a savings policy intended to repay the mortgage. When the relationship ends, it can feel as though a shared jigsaw puzzle has to be taken apart piece by piece, except that the pieces do not automatically fall neatly into two equal boxes.

One of you stays in the house: value, mortgage and buy-out

In many cases, one of the partners wants to stay in the house. This may seem simple: “You take over the property”. In reality, however, this is often where the more complex issues begin. What is the property worth? What happens to the mortgage? And perhaps most importantly: how can it be ensured that the other partner receives what he or she is entitled to? Dutch law not only stipulates that the assets must be divided, but also that appropriate financial arrangements must be made. It is therefore not simply a matter of handing over the keys, but also of careful calculation and financial settlement.

A useful comparison is that of sharing the bill after dining out together. If one person ordered only a coffee while the other enjoyed a full dinner, splitting the bill equally would not feel fair. The same principle applies to the division of a house. If one partner retains the property, that partner will often need to compensate the other financially in order to restore balance. In legal terminology, this is referred to as “over-allocation”. In everyday language, it simply means balancing the books.

More than just the house must be divided

What is often underestimated is that the property is rarely the only asset requiring division. Consider, for example, the joint bank account that still holds savings. Or a savings policy that has gradually accumulated value over the years to eventually pay off the mortgage. These are not separate matters, but integral parts of the overall picture.

A common example is a divorcing couple who own a property linked to a savings policy. One partner continues living in the house, yet the value accumulated within the policy also represents jointly built-up capital. It would therefore be inequitable for one person to retain both the property and the policy while the other is left without compensation. In practice, the value of such policies is therefore taken into account during the division of assets in order to achieve a fair overall settlement.

This is precisely where the strength of a well-structured division lies. Legally, it concerns the allocation of assets, but in practice it encompasses much more. It is comparable to reorganising joint finances: everything must be redistributed in a manner that is both legally correct and financially reasonable.

Taking over a mortgage after divorce: the role of the bank

Another aspect that frequently leads to misunderstandings is the position of the bank. Partners may agree between themselves that one of them will “take over” the mortgage, but the bank must also consent to this arrangement. Without the bank’s approval, both parties remain jointly liable for the mortgage debt. This can be compared to a joint loan between friends: even if they agree privately on who will pay which portion, both remain responsible to the lender.

As a result, the division is only truly completed once all the pieces of the puzzle are in their new places. This includes not only the property itself, but also savings, insurance policies and outstanding debts. Only then can real clarity be achieved.

The notary: recording agreements and transferring ownership

The role of the civil law notary in this process can be compared to that of a director working behind the scenes. Although not visible in the foreground, the notary ensures that all legal matters are properly arranged and that no unresolved issues remain afterwards. The agreements reached between the parties are formally recorded, ownership of the property share is legally transferred and both parties are guided through the documentation to ensure they fully understand what they are signing.

At our law firm, deputy civil law notaries Lonneke van Sonsbeek and Jaan van Wijk are available to advise and assist you with the division of property and the related financial arrangements. They can help assess your situation and support you in reaching practical and workable agreements.

If you have questions regarding family law matters, for example, amending a jointly drafted will, reviewing your estate planning or preparing a living will, please feel free to contact deputy civil law notary Merel Priester.

The division of assets upon divorce is not simply a matter of drawing a line down the middle. Rather, it is a careful redistribution of a shared past. By addressing these matters properly and thoroughly, future disputes and uncertainties can often be prevented.

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