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.
Division of spouses property
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.
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.
Recognition in Netherlands of divorce decree from other EU country
Since 1 March 2005, the Council Regulation (EC) No2201/2003 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) No1347/2000, 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.