WHICH LAW APPLIES IN FAMILY LAW MATTERS (CHOICE OF LAW)?
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.
This article reviews the law applicable in The Netherlands to divorce, child support, marital status, and pension equalization.
Law Applicable to Divorce
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
The applicable law concerning the establishment of a child support (maintenance) obligation is determined according to Dutch international private law on the basis of the reference rules of the Hague Maintenance Convention (applicable law) of 1973 (Trb. 1974, 86).
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.
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 May 1, 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:
- 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.
- 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.
- 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.