When does Dutch law apply to divorce?

Marjet Groenleer

Although Dutch divorce law stipulates rules about pensions, for internationals in the Netherlands going through a divorce, it may very well be that a different law is applied to the question of spousal maintenance from the law applied to the matrimonial property. In order to determine which law should be applied in respect of maintenance we need to consult other sources besides the Hague Marriage Convention of 1978.

Child maintenance

Under the Hague Protocol of 2007, the law of the country where the person entitled to spousal  maintenance usually resides is used when considering applications to determine child maintenance. Where an application of this kind comes before a Dutch judge and the children are living in the Netherlands, child maintenance will be determined according to Dutch law.

Maintenance for partners

Under the aforementioned protocol, the law of the land where the partner who is entitled to maintenance usually resides also applies in cases of maintenance for partners. However, there is an exception to this rule. If the partner who is liable for maintenance disputes the application of this country’s law and the parties’ marriage has closer ties to another country, that country’s law will apply. The drafters of the protocol specifically had in mind the country where the parties last lived together.

Various factors are involved, such as the place where the couple were married, how long they lived in different countries as a married couple, their nationalities etc. This potential exception can give rise to disputes in international divorces, especially for internationals who often have a closer relationship with another country, for example if they share the same nationality.

Make sure you are well informed where spousal  maintenance is concerned. The differences between countries is large, especially in respect of maintenance for partners. The duration of maintenance payments varies, but the amount can also differ considerably. Norway, for example, does not even recognise the concept of maintenance for partners.

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