SOME NOTES ON MARRIAGE AND DIVORCE LAW IN THE NETHERLANDS
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.