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Netherlands
Which Law Applies in Family Law Matters (Choice of Law)?
by Jeremy D. Morley
However, in any international case in The Netherlands the Dutch
court must decide which country's law will govern the particular
issue. In certain cases the Dutch law will apply the law of a
different country to the dispute that is before it.
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).
Choice of Law in The Netherlands Concerning Child Support
In
accordance with this treaty, the Dutch court shall apply Dutch law;
· if the maintenance debtor and the maintenance creditor
both have Dutch nationality and the maintenance debtor has his
or her habitual residence in the Netherlands;
· if the maintenance creditor has his or her habitual
residence in the Netherlands;
· if the law of the country of habitual residence of the
maintenance creditor outside of the Netherlands does not award
him or her a maintenance allowance and the maintenance debtor
and the maintenance creditor both have Dutch nationality;
· if neither the law of the country of habitual
residence of the maintenance creditor outside of the Netherlands
nor the law of the non-Dutch nationality common to both the
maintenance debtor and the maintenance creditor can award the
maintenance creditor a maintenance allowance;
· in the case of maintenance between ex-spouses, if
Dutch law is applied to the divorce.
If Dutch
law is not applicable, the Dutch courts will in such an event, in
principle, apply the foreign law of the habitual residence of the
maintenance creditor. If that law does not provide for maintenance,
then the Dutch court will apply the common national law of the
maintenance creditor and the maintenance debtor.
In the case
of divorce, the law that is applied to the divorce is also applied
to the maintenance obligation towards the ex-spouse.
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Choice of Law in The
Netherlands Concerning
Marriage Status
The
Netherlands is a party to The Hague Convention on Celebration and
Recognition of the Validity of Marriages of 14 March 1978. The terms
of this treaty govern the issue of whether a court in The
Netherlands will recognize a marriage that took place in another
country and whether an annulment of such a marriage may be granted.
______________________
Choice of Law in The Netherlands Concerning Pension Equalization
The law
governing the conflict of laws regarding the equalization of
pension rights after divorce came into effect on 1 March 2001.
The act was published on 11 January 2001 in the Bulletin of
Acts, Orders and Decrees [Stb.] no. 12.
Since 1
May 1995, the Netherlands has applied legal rules to equalize
pension rights built up during the marriage or registered
partnership, after divorce. The new law supplements the rules
with stipulations on pension equalization in international
cases, and includes the following:
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Pension rights, built up pursuant to a Dutch pension scheme
will always qualify for equalization in accordance with
Dutch law. The law governing the marital property regime of
the spouses is of no importance.
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Pension rights built up pursuant to a foreign pension scheme
will also qualify for equalization in compliance with Dutch
law, but only if Dutch law applies to the marital property
regime.
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If
international law applies to the marital property regime of
the spouses, any pension rights build up pursuant to a
foreign pension scheme will only qualify for equalization if
provided for by the foreign law in question.
Spouses
can exclude pension equalization under Dutch law in their
nuptial or partner agreement or in a divorce settlement.
Source:
Europa Judicial Network.
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