Opinion: The concept of marriage

POSTED: 11/6/13 1:25 PM

The concept of marriage is a proven failure. This is currently true for 37 percent of all marriages in the Netherlands. Last year, 33,273 couples split up after an average marriage of 14.5 years. Divorce is becoming more common every year, because the trend is upward. The lowest percentage dates back to 2003, when 32.2 percent of all marriages ended in divorce.

Good to know: the average age of men involved in divorce was 46 last year, that of women 42.9. So beware when you are around that age in a marriage that has lasted 14.5 years.

Divorce is not just about broken hearts and broken promises, it is also about kids and, to a large extent, about money. Who gets what when two partners do not longer want to sleep in the same bed?

The liberal VVD, the socialist PvdA and the left liberal D66 want to change the legislation that regulates marriage in such a way that divorcees do not automatically have to share  savings, inheritances and debts anymore. Up to this day, most people opt for a marriage in community of property, which means that they share each other’s assets, but also each other’s liabilities.

By marrying under separate contract, couples are able to make their own rules. They have to establish them in a notarial deed at a cost of between €500 and €1,000 (between $685 and $1,370).

According to Magda Berndsen, a Member of Parliament for D66 this is the world upside down. She notes that the society has changed, that people marry at a later age and often have some savings to their names. Those savings automatically become a couple’s joint property. Berndsen wants to keep things that are private, private.

The MP also refers to old debts of former marriage-partners: they too, become common “property.” In a worst-case scenario, careless lovers could fall for a marriage proposal, face a divorce a couple of months later and then discover that their lover had a $100,000 debt. Through marriage, this liability is under a common property contract split in half.

Berndsen says that the Netherlands is lagging internationally, because “only South Africa and Suriname still have the same marriage practice. We figure that she could add St. Maarten to this shortlist as well.

Two years ago, Berndsen came with a similar proposal, but Justice State Secretary Fred Teeven did not want to hear about it. In 2011, between 70 and 75 percent of couples married in community of property. Teeven reasoned that accepting Berndsen’s proposal would mean that all couples would have to go to a notary before getting married. He also noted that there is not a standard contract for community of property. Couples who want to diverge from the proposed legislation have to register this at a notary.

Teeven also reasoned that couples often agree to a settlement clause when they register a separate contract. This is an agreement to settle income or capital with each other. To write a regulation that applies to everyone is impossible according to Teeven. The exact agreements between partners still have to be registered at the notary.

Berndsen makes a valid point though to support her initiative: most people marry in community of property because they do not think things through. When you’re in love, who cares about money, right? And who wants to go to a boring notary before tying the knot?

There is no official research available about this argument, but it makes sense. Berndsen has spoken with “professors and other experts” who all agree that the current legislation is outdated.

The overwhelming percentage of couples that still marries in community of property belies Berndsen’s claim that her proposal is closer to what people really want. But her proposal and the publicity it generates could very well function as a wake-up call for lovers who want to look beyond what should be the happiest day of their lives.

Berndsen’s proposal also makes the exclusion clause in last wills superfluous. Of the 275,000 wills notaries make every year, most have such a clause that determines that an inheritance does not have to be shared after a divorce.

While the percentage of divorces is high at 37 percent, the number of marriages that does not end in divorce is with 63 percent still in the majority. But the trend does not favor marriage at all. In 1950 for instance, only 8.5 percent of all marriages ended in divorce, and the percentage of the population that is divorces was just 0.7 percent; in 2011 this percentage was 6.9 percent, and increase of around 800 percent.

The message? If you have to get married at all cost, make sure that you have all your ducks in a row.

Here is another interesting tidbit: since the Netherlands legalized same sex marriage in 2001, 14,813 couples of the same sex tied the knot during the next ten years. The number of divorces over that whole period is just 1,078, or almost 7.3 percent. Based on results these marriages are more stable that the union between a man and a woman. Just saying …..

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