12 May 2012
In the Netherlands, since 2001, the marriage between two persons of the same biological sex or social gender is legally recognised and with that the possibility to file for divorce.
In many nations, however, it is not recognised and this so called same-sex marriage or gay marriage is not merely a legal, but also a civil rights, political, social, moral and religious issue.
This post was reviewed and updated on 8 September 2020
The differences in national legislation on same-sex marriages can lead to strange results within an international context. An example. A gay couple is married in a country that recognises same-sex marriages, moves house to a country that does not recognise same-sex marriages and after a couple of years decide to file for divorce.
In the country they currently live, however, they are not able to divorce, because their marriage was not recognised in the first place. In other countries on the other hand, they need a divorce to be recognised as not married anymore. Gays and lesbians, just as straight people, have an (emotional) interest that the end of their relationship is officially acknowledged.
According to Dutch law, when both spouses have the Dutch nationality, filing for divorce in the Netherlands – even if they do not reside here – does not present a problem. For same-sex couples who do not have the Dutch nationality, but at least one of them lives in the Netherlands, there should be no problem to file for divorce in the Netherlands either.
Strictly, they won’t be able to get a divorce in the Netherlands. However, article 9 of the Wetboek Burgerlijke Rechtsvordering could be an exception. According to this article the Dutch Court has jurisdiction if a procedure outside the Netherlands is impossible or if there is a connection with the Dutch jurisdiction.
Unfortunately there is not a lot of case law regarding this topic, but in 2012 The Court of The Hague declares the divorce between two women who did not live in the Netherlands and of whom only one woman had the Dutch nationality. Since the couple could not file for a divorce in Australia where they lived at that time or in another country, the Dutch Court declared itself admissible in this case pursuant to article 9 Wetboek Burgerlijke Rechtsvordering.
This (single) judgment seems to open the door to joint applications for the divorce of homosexual couples, one of whom is a Dutch national, both living in a country which is does not recognise same-sex marriage.
For more information, please contact me.
