30 January 2011

Same-sex marriage

Is it always possible for gay couples to file for divorce in the Netherlands?

In Holland, 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.

Only a couple of days ago, Barack Obama decided that the prohibition on same sex marriages is in violation of the principle of equal treatment and therefore in conflict with the American Constitution.

Same-sex divorce

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 relation is officially acknowledged.

Same-sex divorce in The Netherlands

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.

But what if a couple does not meet these requirements?

Strictly, they won’t be able to get a divorce in Holland. However, in my opinion, article 9 of the Wetboek Burgerlijke Rechtsvordering could be called upon. 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.

Case law on this issue, unfortunately, does not exist yet. A decision principle would be very interesting indeed.

More information?

If you need advice on your rights and options for a same-sex divorce, please contact us.

Marcella Verwoerd

Lawyer

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