|
Netherlands
Marriage and Divorce Law
-- Some Notes.
Jeremy D. Morley
1. The Netherlands is said to be the only country in the world where
universal community of property is the basic legal matrimonial property
regime. Under Civil Code, Title 7, Article 1:94 all assets and debts of
the individuals who marry, whether they were acquired before or after
the marriage, fall within the community. This even includes donated and
inherited assets, unless the donor or testator specifically excludes
them. A special category of assets that are closely attached to the
person of one of the spouses is excluded from the community scheme. Each
spouse has the right to manage the assets that he or she brought into
the community. Some transactions like the sale of the family home, or
donations exceeding the value of ordinary gifts, require the consent of
the other spouse (Art. 1:88). If the marriage is terminated by death or
divorce the community property is divided equally.
2. Homosexual and heterosexual couples wanting to formalize a
relationship can choose between three options: civil marriage,
registered partnership or a cohabitation agreement. A cohabitation
agreement must be drafted by a notary, has legal consequences only for
the parties who sign it and covers only those issues that the parties
choose.
3. Spouses can enter into a prenuptial agreement at the time of the
marriage. They may also enter into a post-nuptial agreement during the
marriage itself, but only with the prior approval of the court and only
after at least one year of marriage. Spouses are free to choose between
one of three models described in the code, or to regulate their property
relations, with some limitations, as they wish. The prenuptial agreement
has to take the form of a notarial deed and should be entered in a
matrimonial property register. This register is accessible to the public
at the registry of the court in the district in which the spouses were
married.
4. The Netherlands is a party to the Hague Convention on the Law
applicable to Matrimonial Property Regimes, which entered into force on
1 September 1992. Only five countries are parties to the Convention and
only three countries, including The Netherlands, have incorporated it
into their internal law. Article 6 of the Convention allows couples to
select as the law governing their marriage the law of a country of which
at least one of them is a national or a resident. In addition, in
respect of real estate only, spouses can choose to apply the law of the
country in which that real estate is situated. The terms of the
Convention apply to relations between the Netherlands and third party
countries, so that, for example, an American couple who were married in
the Netherlands and chose the law of the American state from which they
originated to govern their marriage, will have made a choice that a
court in the Netherlands would recognize, even though the U.S. is not a
party to the Convention.
5. The laws concerning child custody have been amended frequently in
recent years. Joint custody is now automatic, 'unless the parent or one
of the parents have requested the District Court to determine that, in
the best interests of the child, custody should be awarded to only one
of them' (Art. 1:251/2). Custody includes almost all parental rights,
including the right to raise and educate the child, the possibility of
giving the child one's surname, the right to represent the child and to
manage and to use the child's property. It also imposes an obligation to
maintain the child.
__________________________
The statements contained herein are for
discussion only. They have not been prepared by an attorney admitted to
practice in the Netherlands. Do not act without taking legal advice from
an attorney who is admitted to practice in the jurisdiction in question.
|
Conditions for obtaining a divorce in the Netherlands
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 six 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.
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.
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.
Prenuptial agreement
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.
Child support
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.
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. The sole ground for
legal separation is the irreparable breakdown of the marriage.
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.
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.
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.
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
recognized 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 recognized. The Regulation
provides a number of grounds for refusal in this instance: reasons for
refusing to recognize 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.
If an
interested party wishes it to be established that the foreign divorce is
not recognized 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. |
See
Netherlands Choice of Law as to Family Law
Netherlands Division of Spouses’ Property
Netherlands
Child Custody
Netherlands Spousal Maintenance
Netherlands
Legal Separation
Netherlands
Marriage Annulment
Netherlands Recognition of Foreign Divorce
Netherlands Prenuptial Agreements
If you
have questions
concerning your personal situation, please email us wherever possible at
jmorley@international-divorce.com
giving full details. |
