30 January 2011

Same-sex marriage

By Susan Meijler

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.

 

Susan Meijler

Susan Meijler

Lawyer

Susan Meijler is a well-experienced and versatile lawyer at GMW lawyers.

Related blogs

17 May 2023

Joint custody on the basis of acknowledgement from 2023

In practice, a frequent question is whether the other parent also has custody. The answer to this question depends in part on when the acknowledgement took place.

Read more

19 April 2023

May you waive spousal support?

Can you agree to waive spousal maintenance before marriage?

Read more

27 February 2023

What are the benefits of mediation?

Some of our family lawyers also work as mediators. I am one of them. Mediation in family law cases is on the rise. Nevertheless, some ambiguities about mediation still exist.

Read more