12 September 2012

The international gay divorce: breaking news!

By Lucienne Diaz Murillo

Suppose you’re married to a person of your own sex and you both live outside the Netherlands, in a country that doesn’t recognise same sex marriages, and only one of you has Dutch nationality.

Could you divorce in the Netherlands?

Competence of the Dutch court

In my previous weblog about this issue, I informed you about the problems same-sex couples could face (see Can gay couples file for divorce?). How do things stand in this regard? The Dutch court is exclusively authorised to grant a divorce if both spouses have Dutch nationality and/or if both spouses live in the Netherlands and/or – under certain circumstances – if one of the spouses lives in the Netherlands. The situation mentioned above meets none of these conditions. This would mean that the Dutch court is not competent to consider the petition for divorce.

Australian case

Nevertheless, I did file a petition for divorce on behalf of a same sex couple married in the Netherlands, living in Australia, of whom only one of the spouses has Dutch nationality (the other is Australian). In Australia, same sex marriage is not recognised. Therefore, the couple is not married before Australian law, which renders it impossible for them to get a divorce in Australia. Should the Dutch court be incompetent, this couple would never be able to divorce, presuming they stay in Australia. That is most unsatisfactory. For that reason the Dutch court granted an appeal to the exception of article 9 Code of Civil Procedure, and pronounced the divorce after all. This was quite unique, since exceptions to the competence rules are hardly ever made. I am very happy with this result. It could offer other same sex couples in legally troublesome situations a way out.

Lucienne Diaz Murillo

Lucienne Diaz Murillo


Lucienne works as a lawyer within the Family & Inheritance law section.

Related blogs

15 May 2024

A right to reimbursement, what does that really mean in a divorce?

Divorce often involves the right to reimbursement. But what exactly is a right to reimbursement?

Read more

8 April 2024

Prenuptial agreements: the regular set-off clause

A common provision in prenuptial agreements is the ‘regular set-off clause’.

Read more

1 April 2024

Does loss of income mean higher child maintenance?

A parent may suffer a loss of income due, for instance, to not being able to find a new job. Under the law, child maintenance may be adjusted in such circumstances.

Read more