Getting divorced in the Netherlands
A guide on how to file for divorce in the Netherlands, including conditions for filing for divorce, mediation, documentation and important issues to discuss during the divorce proceedings.
As an expat living in the Netherlands it is, in most cases, possible to get a legal divorce in the Netherlands that will also be recognised in your own country. International and family law expert Carlijn van der Vegt-Boshouwers explains how to file for divorce in the Netherlands and what to expect during negotiations and divorce proceedings.
Divorce in the Netherlands
Filing for divorce in the Netherlands is not a difficult process. There are three types of formal union in the Netherlands: marriage, a registered partnership and a living together agreement. They all apply to both heterosexual and same-sex couples.
If you are married, your marriage must be formally dissolved (ontbinding) by the District Court. This guide focuses on how to end an official marriage in the Netherlands.
Conditions for filing for divorce in the Netherlands
The Dutch courts will typically process your divorce if at least one of you is resident in the Netherlands. If you are resident in different countries you will need to find out which laws apply, which can depend on things such as where your children live or where your main property is.
Contact a specialised lawyer
If you are legally married and want to divorce, your marriage must be formally dissolved by the District Court. The filing can be done by one spouse on behalf of both spouses.
To be able to file for divorce in the Netherlands you will need to contact a lawyer. It is not possible to contact and file your divorce with the District Court yourself. Lawyers who specialise in family law are members of the vFAS (www.vfas.nl).
It first needs to be determined whether the Dutch judge has jurisdiction to rule on the divorce. This will be the case when at least one spouse still has habitual residence in the Netherlands. Dutch law does not require the spouses to live physically apart for a certain period before they file for divorce.
On the day the lawyer sends the divorce papers to the District Court your case is 'pending'. Your lawyer will, as instructed by law, contact a bailiff to serve the divorce papers to the other spouse so this spouse is officially informed and can contact a lawyer.
In general divorce proceedings will consist of a written petition, a written defense (four to six weeks) and a court hearing (couple of months, depending on how busy the District court is). After that the judge will rule (four to six weeks) and the verdict will be sent to your lawyer. After the District Court has ruled there is a three-month period to appeal.
Registration of verdict
It's important to be aware that after the judge has granted the divorce the marriage is not yet considered as ended. It is first necessary to register the court's verdict in the register of deaths, births and marriages within nine months (three months for possible appeal and if not appealed, another six months after that).
If the divorce is not registered on time, the court's verdict is no longer valid and the marriage will remain as before. On the day of registration of the verdict the marriage is officially dissolved. In some cases it will be necessary to register the divorce in your own country also.
Legal grounds for divorce
In the Netherlands, divorce (echtscheiding) is always on the legal grounds of 'irretrievable breakdown of the marriage'. There is generally no requirement to define or prove this. It will not be in your (financial) advantage or disadvantage if you are the person filing for divorce.
It is, however, possible for the other spouse to contest the divorce claim in the proceedings before the District Court or the Court of Appeal. Although, in general the Dutch judge will grant the divorce request since it is typically not accepted to force marriage without possible dissolution.
For children born from the marriage, you are obliged to provide the District Court with a parenting plan that is signed by both parties. In this parenting plan the parents need to at least describe how they will share caring for their children post-divorce, how both parents will stay in contact with the children and how they will take care of their children financially.
Children aged 12 years and older have the legal right to express their opinion before a decision is made. However, it is up to the parents or the judge to decide what will happen with them after the divorce. The children will never be asked to choose between their parents and are not able to decide themselves.
If it is not possible to send in a parenting plan signed by both parties (for example, because it is hard to communicate with the other spouse at that moment) you will need to explain to the court what actions you have taken to amend that situation. It is possible the judge asks the Child Protection Board to give advice about the situation. Ultimately, however, the judge will decide.
At the same time you file for divorce it is possible to ask the District Court to rule on other subjects that are connected to the divorce such as:
- custody over the children and their residence after the divorce
- visitation rights
- child support
- spousal support (alimony)
- division or settlement of property, including the marital home
- financial assets.
If this was not done during the divorce proceedings it is possible to ask the judge to rule on these subjects in separate proceedings later on. Your lawyer will then have to investigate whether the Dutch judge (still) has jurisdiction or not.
During divorce proceedings it is possible to ask the judge to take preliminary measures regarding the children, the marital home and child/spousal support. These measures will, in general, only apply during the divorce proceedings and cannot be appealed.
In case of definitive and preliminary measures, it needs to be determined which law is applicable to each subject (matrimonial property, alimony etc.). It is possible that the Dutch judge needs to apply the law of your country of origin to a specific subject. Sometimes it is possible for the parties to make a choice of law.
Your lawyer can give you information on which law applies. Since most family law lawyers do not specialise in private international law, it is wise to contact a specialist.
The primary goal of the divorce process in the Netherlands is to help the couple reach an agreement that they can both live with. Even if the petition for divorce is filed by one spouse, the judge will first investigate whether it is possible to come to an agreement about children, finances etc. through mediation.
If both parties agree they will be sent to a mediator. The main part of the process takes the form of mediation meetings, where a divorce agreement is hammered out in the presence of a mediator, lawyer or notary. This can take anywhere from two to 10 sessions of one to two hours each.
If the parties come to a divorce agreement, this agreement will be send to the District Court and the judge will only have to rule on the divorce itself, meaning divorce proceedings can be finalised quickly. After that, court proceedings are over.
You cannot be forced to participate in mediation, but the goal is to let the parties understand they will have to find a way to communicate in the future, especially when children are involved. If mediation is unsuccessful, the proceedings are activated and the parties are thereafter not allowed to inform the judge of the content of any mediation negotiations.
It is possible to go through mediation before a petition for divorce is filed. In that case the parties contact a, preferably specialised, divorce mediator themselves. If they reach an agreement, the mediator will (if he or she is also a lawyer) send in a petition for divorce on behalf of both parties, accompanied with a signed parenting plan and divorce agreement. In such cases there will not be a court hearing and the judge will grant the divorce after a couple of weeks.
The mediator assists the parties with registration of the courts’ verdict. Make sure you are well informed about the mediator and the costs in advance. Mediation through internet without face-to-face contact is not recommended, nor supported by the Bar Association.
Documentation for a Dutch divorce
The court may request whatever evidence it deems necessary. This can include documents such as:
- Residency permit information
- Pre-nuptial agreement (huwelijkse voorwaarden), if one exists
- Income, property and tax information
- Information about any children
- A parenting plan, if there are children involved.
Subjects to consider when going through divorce
If parents are not able to come to an agreement about the children themselves, the Dutch judge will have jurisdiction to rule over the children when they have their habitual residence in the Netherlands. In general Dutch law will be applicable – the nationality of the children doesn’t play a role. By default, under Dutch law both parents retain joint custody of their children. In principle, they will have an equal share in taking care of the children but this does not automatically imply co-parenting (50/50).
Until a child reaches 21 years, generally both parents are financially responsible. If the parents are not able to come to an agreement, the judge will rule using a certain calculation system.
Division or settlement of matrimonial property
It is not possible to give a general answer on how matrimonial property is dealt with in divorce proceedings if you are an expat. This will depend on a number of factors, for example, the year you were married, the country in which you married, the first (joint) habitual residence after the marriage and the duration of your stay in the Netherlands.
Pre-nuptial agreements (huwelijkse voorwaarden) are respected, unless the content is contrary to public order or morality. It is in your best interest to get expert advice before filing for divorce or going through mediation because the consequences of a small mistake can be big.
Negotiating alimony or child support
In general a spouse can apply for spousal support (alimony) during or after divorce proceedings. If Dutch law is applicable, it needs to be investigated if there is need for support and if the other spouse is able to pay. The current maximum duration of spousal support is 12 years after the registration of the divorce verdict, unless the duration of the marriage was shorter than five years and no children were born from the marriage. In such cases, if applicable, spousal support needs to be paid only as long as the marriage existed.
In negotiation or mediation it is possible to make other arrangements about the duration, amount and other conditions of child alimony. The Dutch government, however, is planning reforms in the upcoming years that will change the conditions for spousal support.
If Dutch law is applicable to matrimonial property, Dutch law will typically also apply to pension rights. It needs to be determined whether the pension rights were built in or outside the Netherlands and how to deal with them in divorce.
Your Dutch residency and citizenship
Dutch citizens, EU citizens and anyone with a residence permit in their own name will retain the right to remain in the Netherlands after a divorce. However, if your residence permit is a spousal permit, typically tied to your spouse's job, you will have to apply for a Dutch permit in your own name if you wish to stay in the Netherlands. Consult your lawyer as part of the divorce mediation, particularly if you are considering a formal separation, as this may also affect your residency rights.
It is possible to return to the name you had before you married. Under Dutch law, it is also possible to keep your married name after the divorce. If your spouse does not accept that, the judge can be asked to rule on this subject. By default, the children keep the name they were given at birth. There can be other possible outcomes if arranged as part of the divorce settlement and authorised by the judge.
Other ways to end a relationship or marriage
Registered partnerships can be ended in a similar way to a marriage, but if there are no children and the partners can agree terms, they can make an agreement through a lawyer without having to go to court. A living together agreement or cohabitation can typically be ended without formalities and alimony does not apply.
A legal separation (scheiding van tafel en bed) is an intermediate step where a couple remain married but certain legal obligations no longer apply. It is still necessary to formally come to an agreement on issues such as child support and division of property. There is a three-year waiting period before a legal separation may be turned into a divorce, unless the couple is in agreement it can be after one year. Many other conditions apply so seek professional advice first. It is possible to skip straight to a divorce without undergoing a legal separation.
Expatica / Updated by Mrs Carlijn van der Vegt-Boshouwers, international family law lawyer and divorce mediator at SliepenbeekVanCoolwijkVanGaalen located in Amsterdam and Eindhoven.
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