Divorce — Dutch style
Divorce is always emotionally loaded but dealing with it in a foreign country under a strange legal system can make it even worse.
When Jill met Jan, she was besotted. A native of Canada she was ready to take the plunge and move to the Netherlands, where they would be married, have babies and live happily ever after.
When the relationship went pear shaped and her husband served her with divorce papers, it was like the rug was pulled from under her feet. Aside from the pain, anger, hurt and shock, Jill felt duped.
She had left her country, family, friends and a legal system she could at least negotiate to find herself in foreign divorce court.
“What rights do I have” asked Jill “and what about my child?”
Divorce between an expat and a Dutch person, or two foreigners living in the Netherlands, is, according to lawyer Mark Teurlings of Amsterdam firm Teurlings & Ellens, potentially more complicated than the average divorce. This is because there are more hazards down the road if one person wants to leave the country and if there are children.
“Basically the divorce law in the Netherlands is pretty fair and I often advise foreigners who reside here to get a Dutch divorce, so it is executed here first,” Teurlings said.
“Things become more complicated with children or if the divorce is contested, but if there is an agreement on getting the divorce and the settlement, then the procedures available to get divorced are, in my opinion, fair and swift.”
According to marriage counsellors, considering marriage, particularly for those who move countries, should mean contemplating divorce — hypothetically at least.
However, planning for a worst-case scenario is usually not part of the excitement of starting a life somewhere new, with the one you love. “Things were great and we meant everything to each other,” Jill said. “I wish I had know then what I know now.”
There are three basic divorce scenarios in the Netherlands.
1) Fast Track divorce
or Flitsscheiding (blitz divorce) has existed for a few years and is essentially a glitch in the registered partnership legislation.
A marriage is downgraded to the level of a ‘registered partnership’ and based on a mutual agreement; a lawyer then can process the ‘dismantling’ of that agreement through City Hall.
In this scenario, court approval is not sought, which means that if either person does not live up to the agreement, the couple could end up in court anyway.
However, even though a blitz divorce is an option, (not advisable if the couple don’t agree on the division of assets or if there are children involved) it is not mentioned on the Ministry of Justice website.
The EU does not yet recognize the Flitsscheiding divorce, so you could find you are not "officially divorced" if you go to live in another member state.
2) Amicable divorce (uncontested)
the two partners apply for divorce together. They go to the lawyer's office to carve up an agreement. If the two can agree on a settlement then the lawyer sends it to the court. The court signs it and sends it back. (The court cannot refuse to sign it if both partners have signed the agreement). It takes 4 weeks to send it back and the divorce is finalised when the lawyer registers it with the city registry. No need to go to court.
3) Contested divorce
This is when one person does not agree with the divorce or the settlement discussed and one serves the divorce papers to the other (via a lawyer). Then each gets his or her own lawyer and goes to court where a judge makes the final decision. Usually there is a preliminary and a final hearing, both of which maybe be appealed by either spouse.
Mediators who help couples sort out their issues with the aim of preparing a mutual agreement (outlining division of assents, pension, alimony and custody) are becoming more popular in the Netherlands. Using the mediation service tends to reduce the amount of fighting and trips to court.
Many couples having gone through a Dutch divorce agree that reaching a mutual agreement, especially when kids are involved, is preferable to fighting it out in court.
Mark from the UK who married a Dutch woman and endured a nasty custody battle over their child thinks mediation before going to court should be obligatory.
“One of the worst things about going to court was that the system pitched us against each other,” he said, adding, “I felt really bad that behind her back, I had to get letters and information against her, so I could get joint custody of our son.”
When a divorce is pending, seek legal advice immediately to find out what you should and shouldn’t do. Could leaving home if the fighting gets too much mean you could be perceived in court as abandoning your family? What are the implications if you take the child away?
Where you were married
“If you were married in a country other than the Netherlands, then you could file for divorce in that country,” said Teurlings but “it could also take a lot longer than doing it here.”
Your marriage certificate, if not Dutch, needs to be filed at the Registrars in The Hague once you move here. Even if this isn’t done before the relationshp breaks down, your lawyer can file it and request that it be retroactive.
“Normally the registrar in The Hague deals with international divorces but due to the rise in divorce numbers Amsterdam is starting to process these divorces,” said Teurlings.
If one spouse is Dutch and the not, the couple must be registered as living in the Netherlands for six months. If both are non-Dutch, the must be registered as living here for one year. If both have Dutch passports then the process can start immediately.
If there is a prenuptial agreement, or another contract introduced during the marriage, they will be honoured. If there is community of goods then the starting point for negotiations in the Netherlands is a 50-50 split. Any pension accumulated during the period of marriage is divided equally.
If you are married for more than five years or if there are children, Dutch law requires the person making the most money pay alimony for 12 years.
If there are no children and if the marriage is less than five years old, then the number of years married determines the alimony. If you are the spouse making less money, it is your right to claim the full alimony but if you are satisfied with less, then that can also be arranged.
You may rather have this person out of your life completely and exist on social welfare or unemployment benefit. However, the authorities can come back to you both and say that your ex-spouse is responsible for paying your keep.
If the spouse being supported returns to work, then as soon as they earn a certain amount, a percentage of the alimony is reduced.
Custody of Children
In theory, divorce in itself has no legal consequences for the relationship between parents and children. Both biological parents are obliged by law to care for, and financially support their child, each according to their means, until the child is 18 or 21. In practice, however, children and custody are the thorniest divorce issues.
There are a few other pieces of advice from people who’ve gone through a Dutch divorce:
1. Shop around for your lawyer.
2. Before you start paying lawyers fees, ask what you need to bring to the meetings including ownership papers for house, information about the mortgage, passports, certificates (wedding, birth) and registration papers from the city. This will save having to fax things over later and delay the process.
3. Keep a diary, including dates and times, of things that happen and are said between you and your spouse during the breakdown and discussion of divorce.
4. If the emotional pain is overwhelming, seek a counsellor or friends immediately for emotional support. Try to keep the lawyers and mediators for the business and legal advice. (ie don’t expect a Dutch lawyer to be your social worker or to offer a shoulder to cry on).
5. Research divorce laws from the country where you got married. They could be better in your situation. But if you decide to execute the divorce in the Netherlands, ask your Dutch lawyer to integrate the other country’s provisions into your settlement. Some judges have been known to consider the foreigner’s divorce law, providing the couple married in that country.
6. If the child does not have your nationality or has a surname different than you then a letter of consent from your ex could be required when travelling with your child after a divorce. Beware of international kidnapping accusations.
English language referrals for counselling, legal and mediation advice http://www.euronet.nl/users/access/index.html
The Ministry of Justice Information Department has English language booklets on marriage, registered partnership and family law, which include basic information about rights and responsibilities in divorce.
Subject: Dutch divorce