In an international divorce situation it is hugely difficult to make arrangements work without the active co-operation of the other party. The only realistic approach is to grit your teeth and sit down around the table with your significant other. You can do this together or you can use mediation.

The Mediator should be versed in both the Dutch divorce situation and the international dimension. The Mediator will work with both partners in joint sessions taking into account the human, financial and legal issues to see get the best outcome for you and your children.

The divorce and mediation process

Divorce proceedings may be instituted by both spouses jointly or by just one of them at any time after marriage: there is no requirement for the parties to have been married for a certain length of time. A marriage may only be annulled by a court ruling. The agreement to divorce and the parenting plan made in the mediation is submitted to the Dutch court for a decree to annul the marriage.

In Dutch law, there is just one ground for divorce: irreparable breakdown of the marriage. In practice this means if one partner wants to divorce then despite the opposition of the other partner the divorce inevitably happens.

The average divorce mediation lasts between 5 and 7 sessions of 2 hours each. If there are urgent matters to deal with the Mediator will give them priority. The Mediator will bring all the strands together and set your agreements out into final documentation for submission to the courts.

Children

During the mediation parents will be required to make a parenting plan setting our all the agreements made between them for the care and upbringing of the children. The primary care giver will be determined as well as all access and visitation rights. The contribution of each parent in terms of child alimony is also required to be set out. After divorce, the parents retain joint custody. Only in exceptional cases can the court be asked to grant custody to either one of them. Joint custody does not presuppose that the children spend equal time with their parents.

Now comes the most difficult part of international divorce. The Netherlands is a party to the Hague Convention on the Civil Aspects of International Child Abduction. If you have children the immediate questions that come up are where do you want to live after the divorce, can you even stay here, what would it mean to have the children live in another land than the other parent and not unimportantly how is alimony arranged in such a situation?  Here pulling all the stops out to get agreement is of paramount importance. If one of the parents decides to take unilateral action and take a child out of the Netherlands against the wishes of the other party, this can have very severe consequences both in the civil and in criminal law. The Mediator can make it clear to both parties how the law works and what is required of you.

Division of property and alimony

In the Netherlands there is a general community property regime, whereby, in principle, all property of the spouses, acquired both before and during the marriage, form part of the community. Both sets of assets are combined to form one joint set of assets. In principle, all debts contracted both before and during the marriage also form part of the community, regardless of which of the spouses contracted the debt. Each of the spouses' creditors may seek to recover their claim from the entire community. The community property is dissolved by divorce and must then be divided up. The basic premise in law is that each of the spouses is entitled to half. The spouses may deviate from this and agree different arrangements in a divorce agreement.

Spouses may choose a system other than the statutory one by drawing up a prenuptial agreement, which lays down the rules for the division of property in the event of divorce.

The maintenance obligation between spouses remains effective after the marriage is dissolved. The principle to be applied is that alimony is paid based on a balance between the needs of one party and the ability to pay of the other party. Alimony is paid gross with the paying party recovering the tax paid back from the Dutch fiscal authorities. Discussion often revolves around the capacity of one spouse to earn more if they have not been working full time. Non-financial factors may also have a bearing, such as the length of the marriage and for how long the spouses lived together. Normally the alimony obligation cannot last longer than 12 years. After a short (i.e. no longer than 5 years) childless marriage, the obligation to pay alimony will not, in principle, exceed the length of the marriage.

5 tips for you to survive the divorce process

1.         Be aware that it is normal and functional to go through an emotional rollercoaster in divorce

2.         Focus on what you want for the future in your life  

3.         Discuss your wishes with your partner. Be sure in your own mind you want to divorce

4.         Make contact with the Mediator. Involve your partner in this process.

5.         Prioritise what is urgent to discuss first in the Mediation. Do your homework in preparing a list of assets, income and outgoings

Note well. This article is written regarding the situation as at 1.11.2011 and is intended for general information purposes only and should not be seen as individual advice

The author:-Steve Whittaker is both an English Solicitor and Dutch Mediator. He works with a group of experienced international mediators, see www.TheMediatorsCompany.nl Click on this for information over family mediation and free initial consultation with a mediator.