Recently, I worked together with a lawyer who is not registered with the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Sint Eustatius, and Saba. I acted as the ‘local’ authorized representative in a small pension case in which the question arose whether the pension should be divided between the ex-spouses after divorce. The marriage in question had once been concluded here on the island in the early 1980s (under prenuptial agreements), after which it fell apart twelve summers later. The core of the dispute between the parties was whether one party was entitled to a share of the old-age pension accrued by the other with two pension institutions. One party argued that pension equalization had not been explicitly excluded in the prenuptial agreement and that, in light of the circumstances of the case, the principles of reasonableness and fairness required that the pension be equalized (Boon/Van Loon). Naturally, the other party raised a defense, also referring to the same Boon/Van Loon judgment, arguing that there was no basis for division since the parties had married under prenuptial agreements excluding any community of property.
As local counsel, I did not involve myself substantively in the contents of this pension case. In addition to submitting documents and conducting correspondence on behalf of the lawyer, I was also present at the hearing in the courtroom with the judge, court clerk, interpreter, and the opposing party, who was litigating in person. I was, however, bombarded with questions such as, “Can you tell me what the amount of the court fee is in a case like this (pension division)?” and “Could you let me know whether there is a requirement to wear a robe?”. At the hearing, the lawyer appeared together with his client on the enormous screen of a movable television positioned in a corner of the courtroom. I could see that it was already dusk in the Netherlands, and there was a cozy table lamp on the lawyer’s desk casting some light on his woolly notes. Ultimately, the Curaçao judge held that the Boon/Van Loon judgment implies that where prenuptial agreements exclude every community of property, there is no room for pension equalization.
Article 1 of the prenuptial agreement stated: “Between the spouses, any community of property, including the community of profit and loss and that of fruits and income, is expressly excluded.” According to the judge, the so-called Boon/Van Loon criterion applies in Curaçao without modification, meaning that the express exclusion of pension equalization is not relevant here. In her judgment, the judge considered that the requirement for spouses, even where every community of property is excluded, to additionally and explicitly exclude pension equalization does not apply in Curaçao, whereas legal developments in European Netherlands after the Boon/Van Loon judgment led to the Pension Equalization upon Divorce Act (Wet verevening pensioen bij scheiding, Wvps), which entered into force in May 1995 and makes no distinction based on the matrimonial property regime.
As a result, in European Netherlands pension rights are (still) equalized (also in cases where spouses, by prenuptial agreements drawn up before the entry into force of the Wvps, excluded or limited a full community of property), unless the spouses have expressly stipulated in their prenuptial agreements that certain pension rights are not to be equalized.
In short, since the parties were married under prenuptial agreements in Curaçao excluding every community of property, the division of pension rights was not at issue in this pension case, and according to the Curaçao judge, the requesting party had no entitlement to a share of the old-age pension accrued by the other. The application of the principles of “reasonableness and fairness” also did not lead to a different judgment by the Curaçao judge, as the parties had not been married in a community of property.
Do you have questions about pension equalization or, for example, your prenuptial agreements? Please feel free to contact me via the email address eisden@true-lawyers.com.