Developments in international matrimonial property law

In what country can one apply for divorce? Which law applies? Spouses are often confronted with surprises, especially when it comes to the division or set-off of property.

Foreigners who divorce in the Netherlands are often faced with the Dutch system of the general community property regime, while according to their ‘own’ law, an entirely different regime applies for matrimonial property. Dutch people who live abroad often have no idea how these matters are arranged there.

Competent court

This brings with it legal uncertainty. On 16 March of this year the European Commission submitted a legislative proposal aimed at clarifying for international couples seeking divorce which national legislation will apply for the division of their property and to which court they can bring their dispute. In this legislative proposal, couples can choose to have the ‘divorce court judge’ – the judge before whom the divorce proceedings are brought – also competent to rule on their dispute on the division of their property, such as the settlement of a pre or postnuptial agreement. They can also choose instead the court of the country whose law they have declared applicable to their matrimonial property regime in their choice of law. What happens if they do not manage to reach a decision together? In that case, a number of objective criteria, such as the spouses’ (most recent) permanent address, are used to decide with which country the spouses have the closest ties. This may be the country of the divorce court judge, or it may be a different country.

Applicable law

The parties may make a choice of law for a particular legal system, within certain bounds. If they are not able to reach a decision, objective starting points are again used to decide with which country the spouses have the closest ties. The law of this country is in that case the law that applies to the division or set-off of the property. The coming into force of this proposal represents a rigorous step, particularly as far as the applicable law is concerned, because this would mean that the Hague Matrimonial Property Convention of 1978 no longer applies in European cases. I will keep you informed on when this legislative proposal is to take effect. If you have questions about terminating cross-border relationships, do not hesitate to contact me.