Family law
International divorces
It is not a problem to become divorced in the Netherlands if you are living abroad, as long as both partners are Dutch nationals. The fact that you do not live in the Netherlands at the time of submission of your application for divorce is not relevant.
If one of the partners is not a Dutch national, supplementary conditions will apply to a divorce in the Netherlands. The most important condition, in the case of a joint application for divorce, is that one of the partners must be resident in the Netherlands. In the case of an application for divorce by one of the partners, a further consideration is the duration of the applicant’s residence in the Netherlands. If you are a Dutch national, you are required to have lived in the Netherlands for a minimum period of six months prior to submission of the application for divorce. If you are not a Dutch national, the minimum period is 12 months.
Applicable law in the case of divorce
If the application for divorce is submitted in the Netherlands, Dutch law will apply to the divorce. The sole condition stipulated under Dutch law is that the cause for the divorce must be ‘irretrievable breakdown of the marriage’.
Additional orders in the case of an international divorce
Various issues could arise in the course of a divorce procedure. These are referred to as additional orders. Examples of additional orders are: the establishment of a care arrangement for the children, the determination of partner alimony and child maintenance, the division or settlement of the matrimonial property and pensions. We have to check each subject against international law, determine whether the Dutch court is competent, and which laws are applicable. This may be different for each different component. For example, in the case of an international divorce, the Dutch court is only competent to issue an order if the children are living in the Netherlands. If the children are living abroad, and the parents do not agree on whether the case should be brought before the Dutch court, the Dutch court will not be competent. Specific rules that determine whether the Dutch court is competent or not, and which laws are applicable also apply to the subject of alimony.
Applicable laws for matrimonial property
If you were married abroad, or if only one or neither of you are Dutch nationals, it is very likely that the Dutch law will not apply to the matrimonial property. The applicable law will depend on your nationalities and/or the country where you went to live immediately after your wedding, as well as on the question as to whether you have both made a choice of applicable law. If you have not made a choice of law, then we would have to determine which international laws apply. This is done by means of the ‘conflict of laws’ procedure. The marriage date plays an important role in this procedure. Based on the conflict of laws procedure, we would subsequently be able to determine which laws apply to the matrimonial property and should be applied by the Dutch court.
In the case of an international divorce, it is wise to appoint a lawyer or mediator with extensive knowledge in this field. The lawyers and mediators at SILK have this knowledge and are able to advise and counsel you on this.
