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How to Divorce – In the Netherlands?
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General Information from European Judical Network, European Commission
Almost all cases of divorce have to be granted by the court. Since only a lawyer has authority to file a petition for divorce with the court, a Dutch lawyer must be consulted in all instances. This information sheet provides an overview of the rules in the Netherlands. For further information, you should consult a lawyer.
What are the conditions for obtaining a divorce?
What are the grounds for divorce?
What are the consequences of a divorce as regards:
the personal relations between the spouses
the division of property of the spouses
What does the term “legal separation” mean in practical terms?
What are the conditions for legal separation?
What are the legal consequences of legal separation?
What does the term “marriage annulment” mean?
What are the conditions for marriage annulment?
What are the legal consequences of marriage annulment?
Are there alternative non-judicial means for solving issues relating to the divorce without going to court?
Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
Can I obtain legal aid to cover the costs of the procedure?
Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in the Netherlands?
To which court should I turn in the Netherlands to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
Which is the applicable law in a divorce proceeding between spouses who do not live in the Netherlands or who are of different nationalities?
1. What are the conditions for obtaining a divorce?
Divorce proceedings may be instituted by both spouses jointly (a joint petition) or by just one of them (a unilateral petition).
A petition for divorce may be filed at any time after marriage: there is no requirement for the parties to have been married for a certain length of time.
The divorce takes effect upon the recording of the court ruling in the register of births, deaths and marriages. This can only be done once the ruling has become irreversible (“become final and conclusive”). The divorce must be registered within 6 months of the ruling becoming irreversible, otherwise the ruling ceases to have any effect and the divorce can no longer be registered. If the marriage was solemnized abroad and the foreign marriage certificate has not been filed in the Dutch registers of births, deaths and marriages, the (Dutch) divorce ruling is recorded in the special register of births, deaths and marriages in The Hague.
2. What are the grounds for divorce?
In Dutch law, there is just one ground for divorce: irreparable breakdown of the marriage. The marriage can be said to have irreparably broken down if to continue living together has become unbearable and there is no prospect of a restoration of proper marital relations. In the case of a unilateral petition, the petitioning spouse must assert the irreparable breakdown and, if it is denied by the other spouse, prove it. The court determines whether the marriage has irretrievably broken down.
3. What are the consequences of a divorce as regards:
a) the personal relations between the spouses
It might affect use of the ex-partner’s surname.
b) the division of property of the spouses
The Netherlands has a fairly unusual system for income and assets during marriage. The statutory system is the general community property regime, whereby, in principle, all property of the spouses, acquired both before and during the marriage, form part of the community. Both sets of assets are combined to form one joint set of assets. In principle, all debts contracted both before and during the marriage also form part of the community, regardless of which of the spouses contracted the debt. Each of the spouses’ creditors may seek to recover their claim from the entire community. The community property is dissolved by divorce and must then be divided up. The basic premise in law is that each of the spouses is entitled to half. The spouses may deviate from this and agree different arrangements, either in a divorce agreement or at the time of division.
Spouses may choose a system other than the statutory one by drawing up a prenuptial agreement, which lays down the rules for the division of property in the event of divorce.
After divorce, the parents retain joint custody, as during the marriage. Only in exceptional cases can the court be asked to grant custody to either one of them. The request may be made by both parents or by just one of them. The parent who is not given custody is entitled to access to the child. Both parents (or one of them) may ask the court to make arrangements for parental access.
If the parents retain joint custody after the divorce, the intention is that they should reach agreement about finances. They may ask the court to make these arrangements. If they cannot reach agreement, the court may determine a contribution. If one of the parents gets custody, the court will, on request, investigate how much the other should contribute to the costs of childcare. The parents should, in principle, sort out payment arrangements between themselves.
The maintenance obligation between spouses remains effective after the marriage is dissolved. Either in the divorce ruling or in a subsequent ruling, the court may award a maintenance allowance payable by the other ex-spouse to an ex spouse who does not have sufficient income to support him or herself and cannot reasonably obtain sufficient income to do so, at the request of that spouse. In determining the amount of maintenance, the court takes account of the needs of the ex-spouse who will be receiving the payment and the capacity (financial means) of the other ex-spouse. Non-financial factors may also have a bearing, such as the length of the marriage and for how long the spouses lived together. If the court does not set a time-limit on the maintenance obligation, it will cease after 12 years. In circumstances of acute need, this period may be extended by the court at the request of the ex-spouse in need of maintenance payments. After a short (i.e. no longer than 5 years) childless marriage, the maintenance obligation will not, in principle, exceed the length of the marriage.
If the (ex-) spouses reach mutual agreement about maintenance, they can record this in a divorce agreement.
4. What does the term “legal separation” mean in practical terms?
A legal separation is a means of ceasing to live together without the marriage itself coming to an end. A legal separation is of interest to spouses who wish to separate and regulate the legal consequences of that, but who want to remain married, perhaps for religious reasons. A legal separation offers a possibility of conciliation, but can also be a “stepping stone” towards dissolving the marriage.
5. What are the conditions for legal separation?
The sole ground for legal separation is the irreparable breakdown of the marriage.
6. What are the legal consequences of legal separation?
Legal separation has consequences in regard to the law on matrimonial property, custody (access arrangements) of the children, maintenance and pension. The marriage continues to exist. If, having legally separated, the spouses decide that they do want to fully separate, they can request the dissolution of the marriage after legal separation.
A petition for the dissolution of the marriage subsequent to legal separation cannot be made at any time. Joint petitions for dissolution are not subject to a waiting period. Unilateral petitions, however, are subject to a 3-year waiting period, which the court may reduce to 1 year in certain cases. The 3-year period starts to run once the legal separation is recorded in the register.
7. What does the term “marriage annulment” mean?
A marriage may only be annulled by a court ruling. The annulment is effected by means of proceedings commenced by a petition. Thus a marriage solemnized by the parties cannot be annulled by operation of law (automatically). For as long as a marriage has not been annulled, it is valid.
The law indicates the grounds on which annulment may take place, and at whose instigation.
8. What are the conditions for marriage annulment?
The law gives the following grounds for a petition for annulment:
- Parties were married despite the existence of impediments to marriage (such as requirements for minimum age, consent to the marriage of a minor, bigamy ban, relationship as an impediment to marriage);
- Duress or error;
- Sham marriage;
- Mental disorder of one of the spouses;
- Lack of competence of the registrar;
- Too few witnesses.
9. What are the legal consequences of marriage annulment?
After annulment by the court, a valid marriage is deemed never to have existed. An exception is made to this in certain circumstances. In these cases, the annulment has the same consequences as a divorce. For instance, the children born of an annulled marriage remain related to both parents. Another exception concerns the bona fide spouse, in other words the spouse who was unaware that there was a defect in the marriage. This spouse can, for instance, apply for maintenance to be paid by the other spouse.
10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?
Divorce mediation is very common in the Netherlands. The spouses try, with the help of a mediator and, if necessary, their lawyers, to reach agreement about the divorce and its consequences. These agreements are laid down in a divorce agreement, which is a written document. The agreements might, for instance, relate to the division of property, the maintenance commitments between the ex-spouses, and childcare. The court may include the agreement in its ruling.
There is an association of family lawyers and divorce mediators (the Vereniging van Familierechtadvocaten en Scheidingsbemiddelaars), whose members specialise in, among other things, divorce and maintenance. They also specialise in divorce mediation and all related issues.
Visit www.vas-scheidingsbemiddeling.nl .
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
Divorce proceedings always commence with a petition, which must give the surname, first names and place of domicile or residence of the spouses. If there are minor children, the same details must also be supplied for those children.
In addition to a petition for divorce, one or more ancillary provisions may also be requested. This is a petition connected with the divorce. Matters in respect of which the court may make an ancillary provision include:
- custody of and access to minor children;
- maintenance for one of the ex-spouses and/or for the children;
- the division of community property or the settlement of the system agreed upon in the prenuptial agreement;
- the use of the marital home;
- pension equalisation.
The petition must be filed with the court by the lawyer. If the petitioner lives in the Netherlands, the petition may be filed with the court for the district in which the petitioner lives. If the petitioner does not live in the Netherlands, but the other spouse does, the petition is sent to the court for the district in which the other spouse lives. If both spouses live outside the Netherlands, the petition must be sent to the court in The Hague.
Which documents should I submit?
- original extracts (maximum three months old) from the population register for both spouses, indicating nationality, civil status and, for non-Dutch nationals, mentioning the date of entry into the Netherlands.
If one of the two spouses has Dutch nationality and the other does not, the date of taking up residence in the Netherlands must also be mentioned.
- original extracts from the register of births for minor children (maximum 3 months old) and
- an original extract from the register of marriages (which can be obtained from the town hall for the place of marriage / maximum 3 months old). With regard to marriages solemnized abroad, the original marriage certificate or an older extract will suffice.
12. Can I obtain legal aid to cover the costs of the procedure?
If the litigant is unable to bear all or part of the costs of a lawyer, he or she may, subject to certain conditions, be eligible for legal aid (see also the web page entitled Legal aid). This is known as “legal aid”.
Entitlement to legal aid also applies to cross-border disputes, when the petitioner lives outside the Netherlands but in the EU. This is regulated by the European Directive on cross-border legal aid (OJ EC 2003 L 26, 31-01-2003). If necessary, the Legal Aid Council can assist with choosing a lawyer. The Council’s website is: www.rvr.org . The address can be found under Point 16 of the information on maintenance.
If the litigant lives outside the EU, legal aid may be obtained in the Netherlands under certain circumstances, when there is a relevant treaty. The following treaties are relevant here: the 1954 Hague Convention relating to Civil Procedure, the 1977 Agreement of the Council of Europe on the Transmission of Applications for Legal Aid and the 1980 Hague Convention on International Access to Justice. These treaties contain an arrangement which, basically, means that subjects of states that are party to the treaties are eligible for free legal aid in all other contracting countries in the same way as the subjects of those other countries. A legal aid certificate is requested from the competent authority in the litigant’s habitual place of residence. This authority then sends the application for legal aid, together with the certificate, to the competent authority in the country in which legal aid is to be granted, where the litigant’s entitlement to free legal aid is assessed.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in the Netherlands?
Since 1 March 2005, the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, referred to in short as the Brussels II bis Regulation, has been applied to the EU Member States. The Brussels II bis Regulation applies to divorce, legal separation and marriage annulment. On the grounds of this Regulation, divorces pronounced in the other Member States (except Denmark) are recognised in the Netherlands without any judicial process (Article 21(1) of the Regulation). Nor is any special procedure required to amend the relevant certificates, for instance if a marginal note relating to the divorce has to be placed on the marriage certificate.
Any interested party may institute judicial proceedings in order to establish whether or not a decision will be recognised. The Regulation provides a number of grounds for refusal in this instance: reasons for refusing to recognise the divorce. Recognition of the divorce must not be contrary to public order. It is also considered whether the respondent (the party who did not file a petition for divorce) was properly informed of the proceedings. The accuracy of the decision, however, may not be verified.
On the basis of the Regulation, the court of a Member State in which the decision was pronounced will, at the request of each interested party, issue a certificate regarding that decision (according to a standard format). Among other things, this certificate states the country from which the decision originates, details of the parties, whether the decision was pronounced by default and the type of decision involved: divorce or legal separation, date of the decision, the authority that pronounced the decision.
15. To which court should I turn in the Netherlands to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
If an interested party wishes it to be established that the foreign divorce is not recognised in the Netherlands, he may submit an application for non-recognition to the preliminary injunction judge of the court for the district in which he is ordinarily resident.
16. Which is the applicable law in a divorce proceeding between spouses who do not live in the Netherlands or who are of different nationalities?
The law applicable to divorce is determined on the basis of Article 1 of the Divorce (Conflict of Laws) Act. On the grounds of paragraph 4 of Article 1, even if they do not have Dutch nationality the spouses can still choose for Dutch law to be applied. The court will then simply apply Dutch law. If one of the spouses chooses Dutch law, the court will also apply Dutch law, but only if the other spouse does not raise any objection.
If no choice of law is made, there are various options. If the spouses have common nationality, the common national law will be applied (so a petition for divorce by a French couple will be governed by French law). If, however, one of the spouses lacks any actual social ties to the country of common nationality, for instance because that spouse has lived and worked in a different country for a number of years, the common national law is not applied, but rather the law of the shared habitual place of residence. If the spouses do not have common nationality, the law of their shared habitual place of residence will be applied (e.g. Dutch law will be applied to a divorce petition for an Italian/Spanish couple living in the Netherlands). If the spouses do not have a common nationality, and have no shared habitual place of residence, Dutch law will be applied (e.g. Dutch law will be applied to a divorce petition for a Belgian/German couple, with the husband living in the Netherlands and the wife in Belgium).