Can a foreign marriage be dissolved in the Netherlands?
05 / 09 / 2017 Martin Weenink
Suppose you were married abroad but you want to arrange your divorce in the Netherlands. Is that possible? The answer to this question is both simple and complex: Yes, it is possible but there are many rules and conditions.
The procedure of a foreign divorce or an international divorce begins with a divorce lawyer, just like with a Dutch divorce. The divorce lawyer requests the court to pronounce the divorce (this is not a judgement but a decision).
This immediately leads to the first issue: can a Dutch court decide on an international divorce?
Dutch court with an international divorce
Not every court can decide on every divorce. Within the EU, arrangements exist on this competence (the ‘jurisdiction’). A Dutch court is competent in a divorce procedure if:
- Both spouses have Dutch nationality;
- Both spouses reside in the Netherlands;
- One of the spouses resides in the Netherlands and they jointly file the application for their divorce;
- The applicant who does not have Dutch nationality has been living in the Netherlands for more than one year;
- The applicant has been living in the Netherlands for more than six months and has Dutch nationality; or if
- The defendant lives in the Netherlands.
If you as a couple with Dutch nationality were married abroad and are still living abroad (such as Spain), the divorce can be pronounced by a Dutch court. However, if you were married abroad and are now living in Spain with a Spanish spouse, the divorce must be pronounced by a Spanish court.
If you are the only partner who lives in the Netherlands and do not have Dutch nationality (e.g. as an expat) and were married in your home country, the divorce can only be pronounced in the Netherlands if you have been living in the Netherlands for more than one year, if the application is filed jointly or if it is filed by your partner. However, if your partner also lives in the Netherlands it is always possible to arrange your divorce in the Netherlands.
If the parties were married in India, for example, and the application is filed here, the Dutch court will apply the treaties. If a procedure is started in India at the same time, the Indian court will decide which country has jurisdiction. A divorce lawyer can support you.
Suppose that the husband lives here and the wife lives in England. The husband can ask for a divorce here, but if the children live with the wife in England, the Dutch court is not competent with regard to the children.
You are almost never required to go to the relevant country yourself to apply for the divorce. Even if only the foreign court is competent, in many cases a foreign lawyer can file the application by means of authorisations.
How Dutch law applies to international divorce
The fact that a divorce can be arranged in the Netherlands does not always mean that Dutch law will apply. It often happens that a Dutch court has to apply foreign law to a divorce, such as Belgian or English law.
For example, it may happen that Dutch law applies to the divorce itself, English law to the matrimonial property regime and Belgian law to maintenance. It must be assessed with each aspect of the divorce whether jurisdiction exists and which law applies.
The choice of law for an international divorce must be laid down by you. This can be done at the time the marriage is celebrated or at a later date. So, even if you as spouses are about to get divorced, it is still possible to jointly choose the law of a certain country.
However, this is subject to certain conditions. As spouses you can choose from the law of the following countries:
- The country where you and your partner were living at the time of the marriage;
- The last country where both of you lived and where your partner is still living (or vice versa);
- The country of your (or your partner’s) nationality; or
- The country in which the application for a divorce is filed.
If a choice of law is made, e.g. in a prenuptial agreement of a non-EU country, the Dutch court will assess on the basis of the law of the relevant non-EU country whether or not the choice of law has been validly made.
Such a choice of law is often respected. Incidentally, this does not apply the other way round; so it is always the question what a foreign court will do with a Dutch prenuptial agreement. Different rules apply in each country. A divorce lawyer can support you.
International divorce lawyer
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