# A dividend was paid and the company cannot meet its debts in a family-owned company
When a distribution leaves the company unable to pay debts as they fall due, you face a fork: negotiate repayment inside the family before a creditor or a trustee moves, or wait for a formal claim against the shareholders who received the payment and the directors who approved it. In a family-owned company the two roles usually sit with the same people, which closes the informal route faster than in an unrelated shareholder structure.
What happens if you do nothing
Nothing changes the underlying position: the company remains short of cash to meet debts that are due. A creditor who goes unpaid can petition for bankruptcy, and once a trustee is appointed, the trustee has a statutory duty to examine distributions made before the filing. A trustee does not negotiate on family terms and is not bound by any family understanding reached beforehand. Waiting narrows the routes open to you; it does not preserve them.
The routes
| Route | What it takes | Time | Cost driver | What it gives you |
|---|---|---|---|---|
| Negotiated repayment inside the family | Consensus among the recipients and a board resolution reversing the payment | Weeks, informal | Advice on the resolution; no court fee | Solvency restored, no public record |
| Formal claim against recipients and approving directors | Proof that the company failed the liquidity or balance sheet test at the date of payment | Months to over a year, through litigation | Court fee scaled to the amount claimed, plus forensic accounting evidence | An enforceable repayment order, and potentially a personal award against a director |
| Inquiry request to the Ondernemingskamer (Enterprise Chamber) | A shareholding of the size the law requires, and a governance dispute blocking any family decision | Months | Court fee, plus the cost of an investigator appointed by the court | Binding measures and a public record of what happened |
What decides between them
Whether the family relationship still functions as a negotiating channel is the first question, because once a creditor has filed or a trustee is in office, that channel closes. This question sits inside corporate law and governance, since the same overlap of shareholder and director roles that caused the distribution also determines who can be asked to repay it. Under Dutch law, that overlap is what decides who can be asked to repay, not the family relationship itself.
A related fork arises when a drag-along clause is triggered and a minority shareholder resists inside the same family structure: both turn on whether the family can still reach a decision without a court. The size of the shortfall against remaining reserves, and whether the distribution was recent or several years old, also shape which route is realistic.
The deadline that runs
A trustee's power to challenge a distribution made before bankruptcy runs from the moment of payment, under the applicable Dutch rules; the current length of that period should be checked before you rely on it. Outside formal insolvency, a creditor's own claim against the receiving shareholders is subject to a separate limitation period that also runs from payment. Neither period is suspended by a family negotiation that has not been formally recorded.
Evidence to secure now
Secure the board resolution approving the distribution and the balance sheet and liquidity assessment the board relied on at the time. Add the actual bank position at the date of payment, not the position at the date of the resolution, since the two are often different. Keep any correspondence among family shareholders discussing the decision, and the accountant's or adviser's note, if one exists, on whether the company could meet its debts afterwards.
Cost drivers
A negotiated repayment inside the family carries no court fee and no external cost beyond advice on the resolution reversing the payment. A formal claim, whether brought by a creditor, a trustee or the company itself before a Dutch court, carries a court fee set by the amount claimed, plus the cost of forensic accounting evidence to reconstruct the balance sheet test at the date of payment. That reconstruction, not the fee itself, is usually the larger of the two costs.
What we would do in the first week
Obtain the resolution, the balance sheet and the bank records for the date of payment, and set them against each other to see whether the liquidity test in fact failed. Establish, in the Netherlands, exactly which family members and which entities received the distribution and in what proportion; a structure report answers that question without relying on what the family remembers. Decide, on that basis, whether a negotiated repayment is still realistic or whether a formal claim should be prepared before a creditor moves first.
What this does not cover
- The tax consequences of the distribution itself, or of a reorganisation that follows it, including whether a group reorganisation triggers real estate transfer tax.
- Criminal exposure for the directors, which is a separate regime from the civil repayment claim addressed here.
- A company where the shareholders who received the distribution are unrelated to the directors who approved it: the negotiating dynamic described here does not apply.
- A distribution by a listed company or one with independent supervisory oversight.
- The position of employees or other creditors ranking ahead of the shareholder claim.
Questions
Does it matter that the company is family-owned?
Yes. Where the shareholders who received the distribution are also the directors who approved it, both the negotiated route and the formal claim can involve the same individuals in two roles, which changes who has to be persuaded and who has to be sued.
Can the company ask for the dividend back without going to a Dutch court?
Yes, if the recipients agree. A board resolution reversing the distribution and a repayment can be arranged without litigation, but it depends on consent that a trustee cannot be asked to give once appointed.
What does a structure report add that the family's own account does not?
It sets out the ownership chain and the recipients of the distribution from the register, independent of what any family member states, which matters once the question moves from negotiation to a formal claim.
About this material
Written by Eva Kuipers, who works on governance disputes and Enterprise Chamber proceedings. This note addresses the mechanics of the recovery question only; it does not address the tax or criminal law consequences of the same distribution.
Where the family channel has closed, the practical step is mapping who received the distribution and what each family member currently holds; see the structure report. The wider service context is under shareholder disputes. For the cross-border question of enforcing a repayment order against a director who has moved abroad, see the cross-border effect of a wrongful-act liability claim against a director. For an ownership-chain report used in a similar fork abroad, see the ownership chain report for Greece.
If you want a route set out against your own facts, request a route note.
Last legal review: 2026-10-01