Act on the Equalisation of Pension Entitlements after a Separation

Act of April 28, 1994 (Bulletin of Acts and Decrees, 1994, 342)

Article 1 Definitions
- 1. For the purposes of the statutory provisions set by or pursuant to this Act:
a. ‘divorce’ means: a divorce or legal separation or a termination (ending) of a registered partnership based on another ground than the death of a person or the fact that a person is missing or the conversion of a registered partnership into a marriage;
b. ‘time of separation’ means: in the event of a divorce or a legal separation based on another ground than the death of a person or the fact that a person is missing or the conversion of a registered partnership into a marriage: the date of registration of the court order in the Registers of Civil Status as pointed out by Article 1:116 of the Civil Code;
c. ‘implementing body’ means: the natural person or legal person obliged to pay a pension allowance;
d. ‘pension’ means: retirement pension;
e. ‘employer’ means: the employer of the spouse who is obliged to equalise his pension entitlements;
f. ‘partner's pension’ means: widows and widowers pension or pension for the surviving registered partner, including special widows and widowers pension respectively special pension for the surviving registered partner.
- 2. For the purposes of the statutory provisions set by or pursuant to this Act
a. ‘spouse’ also means: former spouse, registered partner or former registered partner;
b. ‘pension entitlement’ also means: having a retirement pension in prospect;
c. ‘pension’ also means: a recalculation of a disability pension and a pension calculated on the basis of length of service, that has been granted on account of a disease or disability by virtue of one of the Acts mentioned in paragraph 4, under point (d) as of the first day of the month in which the age of 65 years has been reached;
d. ‘nuptial agreement’ means also: terms and conditions of a registered partnership;
e. ‘’matrimonial property regime’ means also: the property regime applicable to a registered partnership;
f. ‘contracting of a marriage’ means also: registration of a registered partnership;
g. ‘remarriage’ means also: entering into a marriage after a registered partnership, entering into a registered partnership after a marriage or re-entering into a registered partnership.
- 3. For the purposes of the statutory provisions set by or pursuant to this Act a ‘pension’ does not include a temporary retirement pension which has taken effect, nor an entitlement to a temporary retirement pension on account of regulations by virtue of which there will only be a right to a pension allowance if such a temporary allowance is or will be paid to the involved person immediately after the end of his employment.
- 4. This Act is applicable to pensions on the basis of:
a. a pension scheme or arrangement on account of a pension agreement as meant in Article 1 of the Pension Act or of a pension agreement concluded by a director-large shareholder as meant in Article 1 of the Pension Act;
b. a pension scheme or arrangement applicable to those who:
1º under the Act on the Compulsory Participation in a Business Pension Fund, as it was prior to the implementation of Article 2, first paragraph, of the Mandatory Participation in an Industry-wide Pension Fund Act (Wet Bpf 2000), are compelled to participate in a business pension fund for a specific sector of industry as far as this pension scheme or arrangement is not already covered by paragraph 4 under point (a);
2º under the Mandatory Participation in an Industry-wide Pension Fund Act (Wet Bpf 2000) are compelled to participate in a pension fund for that sector of industry as far as this pension scheme or arrangement is not already covered by paragraph 4 under point (a);
c. the General Military Pension Act (Stb. 1988, 284) or a former military pension act in the meaning of that General Military Pension Act;
d. the General Pension Act for Holders of a Political Offices (Stb. 1979, 519);
e. the Act on Notaries;
g. [repealed]
h. an occupational pension scheme or arrangement as meant in Article 1, under point (e) of the Mandatory Pensions for Professional Groups Act (WVB);
i. a pension scheme or arrangement on account of a pension agreement between a natural person and the person who has contracted an agreement with him to perform domestic, household or other personal services;
j. a pension scheme or arrangement applicable to workers in sheltered employment.
- 5. The present Act is applicable as well to pensions as referred to in:
a. the Act Confluences of Indonesian Pensions Schemes 1960 (Stb. 1963, 212);
b. the Act on the Amendment of the Provision of Pension regarding the Assistance Corps (Stb. 1965, 550).
- 6. The present Act is, in addition, applicable to a pension accrued (built up) from resources for account of the Fund for an Advanced Levy of Pension Insurance referred to in Article 3 of the Act to Block Family Allowances for the First Child and the Establishment of the Fund for an Advanced Levy of Pension Insurance (Stb. 1972, 702) as this Act was on the day prior to the day on which the Privatization Act FVP entered into force and to a pension accrued (built up) from resources for account of the foundation that has been designated to this end under Article 2, first paragraph, of the Privatization Act FVP.
- 7. The fourth, fifth and sixth paragraph of the present Article apply irrespective of the law that is governing the matrimonial property regime of the spouses.
- 8. If the matrimonial property regime of the spouses is governed by Dutch law, the present Act will apply also to pensions on the basis of a foreign pension scheme or arrangement that is not a pension scheme or arrangement as meant in the fourth, fifth or sixth paragraph, on the understanding that a right to payment as provided for in Article 2 only exists against the other spouse.
- 9. By Order in Council it is possible to qualify payments as a pension in the sense of the present Act.

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Comment DCL
Pension entitlements never belong to a community of property in which spouses may be married according to Dutch law. So even when all other assets of the spouses fall in a universal community of property (Article 1:93 DCC), such entitlements are explicitly excluded as far as they are covered by the Act on the Equalisation of Pension Entitlements at a Separation or as far as they may be regarded as a pension entitlement related to pensions for surviving dependants (Article 1:94 paragraph 4 DCC). Virtually all pension rights fall within the scope of the Act on the Equalisation of Pension Entitlements at a Separation. So during the marriage old-age pension rights are the private property of the spouse who is entitled to them. In the event of a divorce, however, this Act forces the spouses, irrespective of the matrimonial property regime between them, to equalize all old-age pension rights accrued during their marriage (Article 1:155 DCC). As a result, each of the former spouses obtains at the divorce an equal share in these entitlements. They acquire a direct claim against the pension insurance company, which in future may be enforce independently by them. Nevertheless, the spouses have the possibility to derogate from the statutory provisions for the equalization of pension rights in their nuptial agreement or partner agreement or, at the end of their marriage or cohabitation, by means of a divorce agreement (Article 1:155 DCC).

With regard to aspects of International Private Law paragraphs 7 and 8 of Article 1 of the Act on the Equalisation of Pension Entitlements after a Separation are of special importance, since they indicate in which situations the equalization of pension rights has to be done in accordance with Dutch law, therefore in accordance with the Act on the Equalisation of Pension Entitlements after a Separation. Pension rights built up pursuant to a Dutch pension scheme will always qualify for an equalization in accordance with Dutch law (Article 1 paragraph 7). The law governing the marital property regime of the spouses is of no meaning. Pension rights built up pursuant to a foreign pension scheme will also qualify for equalization in conformity with Dutch law, but only if Dutch law applies to the marital property regime (paragraph 8 of Article 1). If the marital property regime between the spouses is governed by foreign law, then the pension rights built up pursuant to a foreign pension scheme will only qualify for equalization if provided for by the foreign law in question.