8 February 2023
If you and/ or your partner want a divorce, and your circumstances are international, you should ensure that you are aware of your options.
Did you know that it is possible for courts in two different countries to have jurisdiction? And did you know that they can both pronounce the divorce? For instance, if you are both Dutch nationals and you live abroad. Or if one or both of you live in the Netherlands and one or both of you is not a Dutch national. The main rule here is the first shot rule. In other words, the court of the country in which divorce proceedings are first initiated is authorised to pronounce the divorce. This rule was confirmed in a 24 May 2022, ruling by the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2022:1542).
In the above case, the spouses were married in India. The wife has the Dutch and Pakistani nationality and lives in the Netherlands. Her husband has the Indian nationality and lives in India. The husband initiated divorce proceedings in India on 5 May 2015. Divorce has not been pronounced in India as yet. The wife filed for divorce in the Netherlands on 10 August 2020.
If divorce proceedings have been initiated in two different countries, the principle of lis pendens applies in the Netherlands. This means that a decision on the same issue cannot be made by a court in two different countries. Does a situation arise where proceedings on the same subject – in this case, divorce – are pending in two different countries? Then the rule is that if the proceedings were brought last in the Netherlands, the Dutch court must stay the case until it is decided by the other court. Once the foreign court has rendered a judgement and this judgement is recognised in the Netherlands and can be enforced, the Dutch court declines jurisdiction.
The principle of lis pendens was invoked in the Amsterdam Court of Appeal decision mentioned above. In this case, the ‘first’ petition for divorce had been filed by the husband in India seven years ago. It was unknown when a final decision would be made in those proceedings. Let alone whether this would be in the foreseeable future. The husband was in a position to further delay the proceedings in India. Given this, the wife had a compelling interest in continuing the divorce proceedings in the Netherlands. As there were no further reasons why the decision in India should be awaited, the court — in derogation of the principle of lis pendens — did not stay the decision on the divorce pending a judgment in India. Despite the fact that the proceedings in India were initiated earlier, it upheld the judgement of the court granting the divorce.
It is very important in an international situation to check whether courts in multiple countries have jurisdiction over the divorce. This applies irrespective of the exception made by the Amsterdam Court of Appeal to the ‘first shot rule’. This particularly relevant if you prefer to have the divorce proceedings take place in one of the two countries and you are concerned that your partner may have a preference for another country. In that case, it may be wise to start the proceedings in your preferred country on short notice, to avoid the decision being made in the other country.
If you and/ or your partner want to get a divorce, you will need the assistance of a lawyer. You should make sure you are well informed by a lawyer. If you need assistance with your divorce,please do not hesitate to contact me.
