If two persons are married in community of property and these two persons are divorced, the joint (matrimonial) property has to be divided between the (former) spouses. That property includes in principle any personal injury payment that was made to one of the (former) spouses during their marriage.

Assets that are connected to one of the (former) spouses do not have to be divided (or perhaps better described as: shared). Connected assets are – stated succinctly – that part of the assets (it can therefore also be a debt) that is connected to one of the (former) spouses in a special manner.

The Supreme Court, which is the highest court in the Netherlands, inter alia, in the field of civil law, has set strict requirements concerning the conditions of connection and determines that the party that invokes connection, i.e. the party that does not wish to share, has to demonstrate that connection applies.

The Supreme Court has determined that a personal injury payment is not automatically connected, but that it could be. For example if the compensation or part thereof by its nature is exclusively coordinated towards the adverse consequences of the accident for the person of the relevant spouse.

The latter situation recently applied according to the Amsterdam Court of Appeal (the ruling of this Court of Appeal dated 08 April 2014; ECLI:NL:GHAMS:2014:1514). The Court of Appeal had to decide whether the non-economic damages that were awarded to the man as a result of a traffic accident that occurred during the marriage did or did not have to be shared with his (ex) wife when the divorce materialised after the traffic accident. The court determined that it did not. According to the court, the non-economic damages – stated succinctly – only compensated the suffering of the husband and not the suffering of the wife and that resulted in connection. The court therefore ruled that the husband did not have to share with his (by then) ex-wife.

The matters set out above could be different if it concerned a payment in connection with the loss of earning potential if this amount – also in the hypothetical situation without an accident – was intended to provide for the living expenses of both (former) spouses.

In short, a personal injury payment is not automatically divided in the case of a divorce and the division of the matrimonial property. An aspect that should be taken into account by both the former spouses and by their personal injury and divorce lawyers.

By René Wildenburg