Pensions and Divorce: a Comparative Study of the Legal Position in Various European Countries

Abstract

Must pension claims or rights be included in the division of assets constituting part of a “total community of property” (i.e., the matrimonial property, all of which is held jointly by the spouses under the statutory provisions obtaining where no arrangements to the contrary are made at the time of marriage) upon the dissolution of a marriage? This important question was recently answered by the Hoge Raad [Dutch Supreme Court] on 27 November 1981, NJ [Nederlandse Jurisprudentie – Dutch Law Reports] (1982) p. 503. In the case which the Hoge Raad had to consider, the total community of property had been dissolved as a result of a judicial separation. Among the assets contributed to the community by the husband were all the shares in an N.V. (public company), of which he was also the managing director. The N.V. had agreed to grant certain pension rights to the husband in his capacity as managing director. These rights consisted of: (a) an old age pension of Dfl. 8,000 per annum (with a widow's pension of Dfl. 5,600 per annum), commencing when the husband attained the age of 60 (1 May 1974) and ending on the date he reached the age of 65 (1 May 1979); to provide for the pension, which the N.V. retained under its own management, a sum of Dfl. 104,000 was allocated to reserves on 31 December 1970; (b) an old age pension of Dfl. 16,430 per annum (with a widow's pension of Dfl. 8,230 per annum) commencing on the date the husband attained the age of 65 (1 May 1979); this pension was built up from 1950 onwards and was substantially increased on 1 April 1979, when it was also transferred to a life assurance company.