12 September 2012
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?
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.
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.
