If expats living in the Netherlands wish to get divorced, how do they go about it? We will take you through the Dutch divorce process on this page. You can find out which kinds of divorce you can file for in Holland, and whether the Dutch law courts can grant you one as an expat. Of course, it is important to know what the consequences of getting a divorce in the Netherlands will be for you and your kids, before you submit your settlement. The outcomes are outlined below as well.
Grounds for divorce in the Netherlands
- The sole ground for divorce in the Netherlands is the irreparable breakdown of a marriage
- This means that the ‘guilt question’ is no longer relevant to a divorce case in the Netherlands. So, in order to secure a divorce from your husband or wife, a guilty party no longer needs to be identified
- It is not necessary to prove adultery or any other form of neglect of the marital rights and obligations, in order to end a marriage
- Simply stating the marriage is broken beyond repair is enough
How to apply for divorce in NL
- A marriage can only be ended in court by mutual request, or upon a request submitted by one spouse
- The proceedings are started by means of a joint or unilateral petition
- The petition will be dissolved once the court pronounces a divorce
- After this, the judgment will be entered in the marriage register of the municipality in which the couple were wed
Some statistics about divorce in the Netherlands:
- Since 1998, the number of divorces has been steadily increasing in the Netherlands
- In 2015, 39% of all Dutch marriages were dissolved through divorce
- It has been argued that Dutch law is preferable to, for instance, English or Scottish law. In these countries, couples must go through a legal waiting period before they can officially end their marriage
- Some other countries even insist on a mandatory reconciliation period
- Therefore, to persons who are non-Dutch nationals and wish to end their marriage promptly, Dutch law holds a certain appeal
COMPETENCE OF THE DUTCH COURTS
The Dutch courts are competent to take cognizance of a petition for divorce if one of the following conditions is met:
- Both members of the couple have Dutch nationality
- The spouse requesting the divorce is Dutch, and has been living in the Netherlands for a period of six months or more
- The Netherlands is the legal residence of both parties
- Both spouses once legally resided in the Netherlands, and one still lives here
- One member of the couple legally resides in the Netherlands, and both submit a request for divorce
- One member of the couple legally resides in the Netherlands, and the other files for divorce here
- The party requesting the divorce has been living in the Netherlands for at least 12 months
In all other cases, the Dutch courts will not be competent to recognize your divorce petition. Therefore, you will be unable to file for divorce in the Netherlands.
WHICH LAW APPLIES?
If the Dutch court is competent to recognize the request for the dissolution of a marriage, then Dutch law applies to the request. Exceptions can be made if both parties have a common non-Dutch nationality and:
- Both choose to apply the law of their common nationality to the divorce request
- Or, one makes this choice in the divorce proceedings and the other does not contradict the choice
- One person chooses to apply the law of their common nationality, and both have a real social connection with the country of common nationality
If the Dutch court is competent to take cognizance of the petition, Dutch law is applicable, and the marriage is deemed unfixable, then the Dutch court can end the marriage.
RECOGNITION OF A DIVORCE ABROAD
If a Dutch court rules to grant you a divorce, will it be recognized in your country of origin? Not necessarily. It depends on:
a) Whether your country is party to the ‘Treaty on the Recognition of Divorces‘. The Netherlands has entered into this treaty
b) Your country’s national law
Be sure to acquire sound advice on whether your Dutch divorce will be recognized in your home country.
UNILATERAL DIVORCE PETITION IN NL
A unilateral divorce petition is a request for a divorce made by just one spouse, and without the consent of the other.
- If you wish to file a unilateral petition, it should contain a request for how you would like the ‘four consequences’ of the divorce to be arranged. Please read on to find an explanation of the four consequences
- Your spouse can also lodge a statement of defense, containing his or her wishes regarding the consequences
- In a divorce hearing, the court will allow itself to be further informed on the requests of both spouses. It will then decide on a date for when it will rule on this matter
- If the proceedings are likely to take a long time the court will, if asked explicitly, come up with some provisional measures for pressing matters. These might include: child visitation rights, alimony, and child support
- If either one of you does not agree with the court’s final ruling, one of you can bring an appeal before the Courts of Appeal
- No appeal can be brought against the provisional measures
JOINT DIVORCE PETITION IN NL
- If both you and your spouse have come to an agreement regarding the legal consequences of your divorce, you can have these drawn up in a settlement
- This settlement can be drawn up by two lawyers, if each of you has his or her own lawyer
- Or, one lawyer can do the job single-handedly. This makes them the ‘divorce mediator’. We will explain what this means in the section below
- This settlement will be brought before the court
- If the court rules in keeping with your settlement, you will require no future hearing
- Children age 12 and older are invited to come to court to give their opinion on the custody arrangements
- However, they can also do this by means of a written statement if they wish. In this case, a hearing will not be necessary
DIVORCE MEDIATION IN NL
The task of a divorce mediator is help both spouses to agree on the consequences of their divorce together, thus promoting the acceptation and durability of the agreement. Of course, divorces can get extremely complicated. But, in principle, here is how it works:
- The idea is that, as a couple, your discussion with the mediator will provide you with a clearer insight into the underlying emotional problems of your marriage
- This is intended to help you both better describe your differences, and see the merits of the various solutions the mediator suggests
- The mediator will advise you on matters such as custody, alimony, and the division of marital property
- If there are certain issues he or she cannot advise you on you will be referred to a specialist who can
- The settlement you create will be submitted before the court, along with your petition
- The court should then rule in keeping with this settlement
COLLABORATIVE DIVORCE IN NL
In order to avoid an uncertain outcome from a divorce court procedure, and possible further litigation, a couple who wishes to separate can also opt for a ‘collaborative divorce‘. This is how it works:
- A married couple work together with their lawyers and, if necessary, other family professionals to produce a settlement that best meets the needs of both parties and their children
- To this purpose, they sign a contract called a ‘participation agreement’
- This contract binds each of them to the process and disqualifies their respective lawyers’ rights to represent either of them in any future family-related litigation
CONSEQUENCES OF DIVORCE IN NL
- Getting a divorce has both legal and practical consequences
- What precisely these consequences are, however, depends on which law is applicable to any given divorce case
- Different laws will cause different consequences and hence bring about different outcomes
- It is very important to check and understand which consequences you will face, before filing for divorce
There are four different types of consequence to getting a divorce:
As long as your children reside in the Netherlands, Dutch law is applicable to the way in which they are affected by your divorce. This will be true, regardless of yours and your spouse’s nationality.
According to Dutch law, divorced parents must make arrangements for the following matters:
- A Parenting Plan
- Parental Custody
- Your children’s place of residence
- Visitation rights for both ex-partners
- Child support and care
‘Geldwijzer Alimentatie‘. This translates as ‘Money Guide for Alimony’, which you can order from NIBUD. NIBUD are a Dutch institution who offer advice on financial matters to private households in the Netherlands
2. ‘Partner’ Alimony
Another consequence of a divorce is the obligation of one spouse to pay alimony to the other, if they are unable to fully provide for themselves. The court will determine whether and to what degree you will have to support each other financially. When calculating the alimony, the court takes the following into account:
a. The needs of the spouse who has the right to alimony
b. The financial capacity of spouse who will pay the alimony
c. A new relationship. If one spouse moves in with another partner, gets married or enters into a registered partnership, he or she will lose the right to partner alimony
d. A change of circumstances. If, after determining the amount of alimony you are to receive, you get a job and are capable of providing for yourself, your right to alimony may cease or be reduced to a lower amount. Conversely, if neither partner owes alimony initially, but later on one person ends up in a situation in which he or she can no longer provide for him or herself, it can be determined that alimony is due after all.
3. Division of Marital Property
The court’s ruling over a couple’s divorce proceedings should contain instructions on how their marital property is to be divided. Legally, that which is part of the communal property should be divided equally between both partners, including the debts. However, you can agree otherwise.
4. Pension Rights
Anyone who contributes towards a pension scheme builds up entitlement to a retirement fund, or a surviving dependents’ pension. When a couple divorces, each party has a right to a portion of the other person’s retirement pension, which they accrued during their marriage. However, a couple can come to a different decision and arrangement on this, if they wish.
- Ministry of Security and Justice: ‘Ministerie Van Veiligheid En Justitie’
- Institute for International Private and Public International Law
- Legal Aid Netherlands: ‘Rechtshulp Nederland’
- The Dutch Association of Family Lawyers: ‘Vereniging Van Personen- En Familierecht Advocaten’
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