Spousal consent on the sale of a home
A construction firm in debt, a patient subcontractor and a wife who knew nothing
The construction firm of [claimant 2] owed almost €470,000 to Bincx, the subcontractor that had gone unpaid for months. On 8 February 2024 the two parties agreed on a solution: through his company, [claimant 2] would sell several plots to Bincx's sister company, [respondent], and a second mortgage would be created over the matrimonial home. In return, Bincx would lift the right of retention over the building site.
What [respondent] did not know — or did not check carefully enough — was that the signature of [claimant 3], the wife of [claimant 2], was forged. She had not signed the agreement, knew nothing of it, and emailed her astonishment to [respondent]'s lawyer that very evening. On 29 February 2024 her lawyer annulled the agreement out of court on the basis of Section 1:88 DCC and Section 1:89 DCC.
[Respondent] did not accept the annulment and sought performance in preliminary relief proceedings (kort geding). The provisional relief judge dismissed the claim. On appeal, on 25 February 2025 the Amsterdam Court of Appeal partially granted the claim: while the agreement had indeed been annulled in so far as it concerned the matrimonial home, the court applied Section 3:41 DCC and held that the plots used for business purposes did have to be transferred. [Claimants] brought an appeal in cassation.
The court said "null" where "voidable" applied — but the Supreme Court lets the ruling stand
On 17 April 2026 the Supreme Court confirmed the court of appeal's judgment. That raises a legal point of principle that featured prominently in the proceedings: the court of appeal consistently referred to the residential part of the agreement as "null", whereas the basis — [claimant 3]'s reliance on Section 1:89(1) DCC — gives rise to voidability, not nullity by operation of law.
That distinction is fundamental. A null juridical act never legally exists; a voidable one does, until the annulment is invoked. In the case of nullity the court is under a duty to establish it of its own motion; in the case of voidability everything depends on the entitled party invoking it. The court of appeal ought to have formulated this more precisely — but the Supreme Court leaves the substantive ruling intact. The reason: annulment under Section 1:89 DCC falls within the ordinary regime of nullity and annulment in Book 3 DCC. Section 3:41 DCC therefore simply applies.
That the Supreme Court confirmed the court of appeal's ruling was not a foregone conclusion. On 9 January 2026 Advocate General Van Peursem had advised that the judgment be set aside and the case remitted. His reasoning: in the proceedings [respondent] had not expressly relied on the absence of an inseverable connection within the meaning of Section 3:41 DCC. The point had been raised only in passing at the hearing. The Advocate General would therefore not permit Section 3:41 DCC to be applied beyond the boundaries of the parties' dispute.
The Supreme Court does not share that reading. Where the Advocate General construes the parties' dispute narrowly, the Supreme Court opts for a broader reading of the procedural debate: [respondent]'s alternative and further alternative claims, combined with the extensive discussion of whether the plots could in fact be divided, could reasonably be understood by the court of appeal as reliance on Section 3:41 DCC. The claimants' procedural defence therefore fails.
Crucial to the partial-nullity ruling: the purpose of Section 1:88(1) DCC is to protect the matrimonial home, not to make business transactions on adjoining plots impossible. Those plots were in fact divided into a private part and a business part, or could be so divided by placing partitions. No inseverable connection, therefore, the court of appeal held — and the Supreme Court lets that ruling stand.
What should a creditor do differently when the spouse does not sign?
The heart of the case lies not in the outcome of the appeal in cassation, but in what went wrong before the signature was — or was not — placed. Section 1:88(1)(a) DCC requires the consent of the non-acting spouse for any agreement intended to dispose of or encumber the home occupied by the spouses. That also applies to plots or spaces belonging to the home, as was apparent from the entrance hall, bedroom, billiard room and garden that the court of appeal counted as part of the matrimonial home.
A signature by email, coming from the spouse himself, is insufficient where the entitled spouse was not present and later disputes having signed. The Amsterdam Court of Appeal had already held that [respondent] was not in good faith within the meaning of Section 1:89(2) DCC — the counterparty should have checked whether the wife was actually aware of, and had consented to, the transaction. Accepting a signature submitted by email was insufficient for that purpose.
For creditors seeking security over the private assets of an entrepreneur who is (or was) married, the rule is: the consent of the non-acting spouse must be established beyond doubt. In case of doubt, engage a civil-law notary and have the spouse sign in person. For matters involving real estate used both privately and for business, prior land-registry research is indispensable in order to know exactly what belongs to the matrimonial home. That also has consequences, after annulment, for the scope of Section 3:41 DCC.
Frequently asked questions
When does a spouse need consent for the sale of a home?
Under Section 1:88(1)(a) DCC, the consent of the non-acting spouse is required for the disposal or encumbrance of the home occupied by both spouses and the things belonging to it — regardless of who owns the home. The term "home" is construed broadly: the garden, garage and adjoining spaces may fall within it.
What is the difference between nullity and voidability under Section 1:89 DCC?
A null juridical act never legally exists. A voidable juridical act is valid until the entitled party — here the non-acting spouse — invokes the annulment. Section 1:89 DCC gives the spouse the right to annul; that right must be actively exercised. Once annulment has taken place, the ordinary rules of Book 3 DCC apply, including partial nullity under Section 3:41 DCC.
Can an annulment under Section 1:89 DCC be partial?
Yes. The Supreme Court confirms that Section 3:41 DCC applies to annulment under Section 1:89 DCC. Where the ground for annulment affects only part of the agreement — here: the encumbrance and sale of residential parts — and that part is not inseverably connected to the remainder, the agreement remains in force for the rest. The court of fact has broad discretion in this respect.
Supreme Court, 17 April 2026, ECLI:NL:HR:2026:681. Advocate General's opinion: ECLI:NL:PHR:2026:46.
Cited case law
Supreme Court: ECLI:NL:HR:2026:681
Advocate General: ECLI:NL:PHR:2026:46
See also
- Reimbursement rights after a relationship: why cohabitants often end up empty-handed
- Home foreclosure auction blocked: provisional relief judge curbs enforcement escalation between former partners
- Six days is too short: court of appeal warns notaries who informed an heir too late about a property transfer
- All publications on real estate and construction law