Marital attachment of spouse’s shares in BV: is that possible?
Marital attachment is a special type of preservation order that one of the spouses can apply on
The assets of a Dutch company reflect the value of all that the company possesses
» Meer over assets assets of the (dissolved) common estate. In a recent preliminary injunction between a divorcing couple, it was questioned whether or not a marital attachment on the share The portion of registered capital of a private or public limited company
» Meer over share shares of a spouse in his company is possible. Hidde Reitsma, Dutch lawyer specialising in attachment and execution proceedings, discusses the decision of the Dutch preliminary relief Judge.
Action for removal of attachment in interim relief proceedings
In this case, the wife requested a divorce. During the proceedings, she seized her husband’s shares in his company. The husband now seeks removal of this attachment in preliminary relief proceedings. Agreements allegedly were already made concerning the division of the shares. Also, no well-founded fear of obfuscation existed, which is one of the conditions to obtain a (marital) attachment order.
Dutch court: shares are part of the communal estate
Based on the interim judgement of the Dutch preliminary relief court, the husband’s shares in the company are part of the communal estate. The circumstances concerning whether or not any agreements were made about division/appropriation of these shares does not alter the above. Furthermore, the agreements were not yet stated in a court order. Also, the actual division/appropriation of the shares could take some time. According to the wife, the to-be divorced couple were not agreed on the division.
Well-founded fear for obfuscation?
Parties furthermore disagreed on whether any fear for obfuscation was well-founded. The preliminary relief court considered that divorce proceedings were ongoing and the shares currently were in the possession of the husband. In this regard, these shares are at his full disposal without (statutory) limitation, so a sale was possible. The proceeds of the sale could be kept out of view and beyond the wife’s control. According to the wife, the husband had intentions to sell the business and he mainly works abroad, which also plays a role. These were sufficient reasons for the court to accept fear for obfuscation,
Marital attachment is a special type of preservation order
Marital attachment is a special type of preservation order that one of the spouses can apply on assets of the (dissolved) common estate pursuant to Article 768 Rv, in order to prevent the other party to dispose of these assets. Only assets that are part of the communal estate are subject to marital attachment. In addition, a well-founded fear for obfuscation of these assets must be present.
AMS for removal of attachment in interim relief proceedings
By law, any interested party can petition for the removal of an attachment order in interim relief proceedings. AMS Advocaten’ experience in such interim proceedings is extensive.