Jurisdiction for divorce and applicable law in the Netherlands
The Dutch court will have jurisdiction in divorce proceedings if:
• Both spouses have the Dutch nationality;
• Both spouses are habitually resident in the Netherlands;
• One of the spouses is habitually resident in the Netherlands and a joint divorce petition is filed;
• The applicant has lived in the Netherlands for one year prior to the application for divorce;
• The applicant has Dutch nationality and has lived in the Netherlands for six months prior to the application for divorce;
• The other party not pursuing the divorce is habitually resident in the Netherlands.
If the Dutch courts have jurisdiction with respect to the divorce, it should then be assessed whether this also applies to the other topics connected to the divorce. Furthermore, the law that applies to each topic of the divorce (the divorce itself, the children, maintenance and the matrimonial property regime) also has to be assessed.
After all, the fact that a divorce can be arranged in the Netherlands does not necessarily mean that Dutch law will apply to it. In the Netherlands, the courts are regularly required to apply foreign law in divorce proceedings. It could for example be the case that Dutch law applies to the divorce itself, while English law applies to the matrimonial property rights and Belgian law applies to maintenance.
Dutch grounds for a divorce
In the Netherlands, the only ground for pronouncing a divorce is that the bond between the spouses has irretrievably broken down. Such an irretrievable breakdown implies that there are irreconcilable differences of opinion and that the marriage has become so troublesome that it can no longer continue.
In the framework of a divorce procedure, it is sufficient that one of the spouses confirms this. The question of guilt is irrelevant, so the court will not verify who is to blame for the divorce.
How to divorce in The Netherlands
Applying for a divorce in court is possible only through a lawyer. This is done by means of a divorce petition.
Joint divorce petition:
If you both agree to the divorce and the way in which the marriage should be wound up, you can file the petition jointly. In this case, the arrangements will form a comprehensive settlement laid down in a divorce agreement.
This divorce agreement thus contains all the arrangements concerning for instance spousal and child maintenance, the settlement of the matrimonial property or marriage contract, the pension claims and the fiscal aspects.
Once the joint divorce petition has been filed, it will take the court 4 to 6 weeks to issue a decree. This decree should be registered in the registry of births, deaths, marriages and registered partnerships, after which the marriage will have been dissolved.
Ex parte petition:
If it proves impossible to reach a divorce agreement, an ex parte petition will be filed with the court on behalf of one party. In such legal proceedings, both parties are represented by their own lawyer. It is obvious that here again, our lawyers will endeavour to reach a (comprehensive) settlement by consultation; this settlement is recorded in a divorce agreement.
If no or only partial consultation is possible, the court will be requested to rule on the individual divorce topics which are submitted, for instance spousal maintenance. In principle, the court can deliver no tailor-made decision but only allow or reject a petition. Conversely, the divorce itself will have to be pronounced by the court.
Divorce proceedings initiated by means of an ex parte petition take much longer than divorce proceedings initiated by means of a joint petition. After the petition has been filed, the respondent is given 6 weeks (including the option to extend this period by 4 weeks) to submit a statement of defense. There is also the opportunity to submit individual petitions. The petitioner may then submit answers in response to those petitions. Subsequently, the court will as far as possible deal with all the petitions in one hearing. If there is insufficient time for this, the court will set a new hearing date. A decree will be issued within four weeks of the hearing, which must be registered in the registry of births, deaths, marriages and registered partnerships. Ex parte proceedings usually take around 12 to 18 months.
Advice for family law in the Netherlands
For advice on divorce and family law in the Netherlands, please contact Chantal van Baalen-van IJzendoorn at:
De Ruijterkade 143
1011 AC Amsterdam
Tel: +31 20 261 0002