2 August 2012
In my blogs, I have previously reflected on the international competence of the Dutch court. In the Netherlands, court intervention is still required in divorce proceedings.
If the Dutch court is not competent, you cannot get divorced in the Netherlands.
In previous blogs (“International divorce: in which country should proceedings be conducted?” and “Same-sex-marriage“), I mainly focused on whether foreign nationals living in the Netherlands, for example expats, can get divorced in the Netherlands. In this blog, I look at Dutch nationals living abroad.
If both spouses have Dutch nationality, the Dutch court may grant the divorce. This is also the case if one of the spouses has dual nationality. With regard to divorce proceedings, the Dutch court is also competent to rule on other issues, such as alimony and child support, as well as deciding on the division of joint assets or enforcing a prenuptial agreement.
However, the Dutch court may not take decisions concerning children, such as establishing contact arrangements, assigning the children’s primary residence, allocating parental authority, etc., assuming that the children of the Dutch couple do not live in the Netherlands either. The court of the country in which the children live is solely competent to decide on such issues, even if the child has Dutch nationality.
The financial side of the divorce can therefore be settled in the Netherlands. Which law will be applied by the Dutch court is another question. This depends on the facts and circumstances of the case. This subject is too extensive to expand on here.
Is a divorce granted in the Netherlands also recognised in the former spouses’ country of residence? That depends on that country’s legislation. European Union member states have agreed to recognise each other’s divorces. In these countries, there will be no problems with recognition of the divorce and other issues agreed. For countries with which there are no such agreements, the internal law of the land determines whether the decision of the Dutch court is recognised, and if so, under what conditions. For its enforcement, the same applies as for recognition.
It would therefore be advisable for a Dutch couple to first explore whether and to what extent a Dutch divorce is recognised in their country of residence before embarking on divorce proceedings in the Netherlands.
If you have any questions, please feel free to contact me.
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