This article was published in de november issue 2010 of www.lawyer-monthly.com
One of the less obvious effects of globalisation is the growing number of international marriages world wide. To find out more about the matrimonial property regime and issues of competence and applicable law in divorce cases in The Netherlands, Lawyer Montly speaks to international family law experts Antoine de Werd and Marjet Groenleer from GMW Advocaten, The Hague, The Netherlands.
How does the Hague Convention affect matrimonial property regimes?
Legally speaking, an international marriage is not limited to a family unit where the spouses have different nationalities. An English couple moving to The Netherlands also has an international dimension. Or a Dutch couple with an immobile property abroad. Only when you and your spouse have Dutch nationality since you got married, have always lived in the Netherlands and/or have no assets abroad, there are no international aspects and Dutch law would always be applicable. In all other cases there is an international element.
Each country, according to its own Private International Law, decides what regime is applicable to the matrimonial property of spouses. In the Netherlands, for marriages tied after 1 September 1992, the 1978 Hague Convention on Private International Law decides when couples with an international dimension are subject to Dutch matroninal property law or to the corresponding law of another country. As the financial consequence of the applicable national law can differ widely, the Hague Convention can have tremendous affect.
What if Dutch law is applicable to your matrimonial property?
If Dutch law is applicable (by rule or designation), the matrimonial regime of general community of property applies if you have not made a pre-nuptial agreement stating otherwise. This means that you and your spouse’s assets and debts – acquired either previous to the marriage or amassed following an inherintance or gift – and independent of the name in which the assets or debts have been registered, are shared from the moment you marry. If the marriage ends as the result of a divorce or death of one of the partners, the property is divided in such a way that each partner receives an equal share of the assets and debts.
A quick example to illustrate the far-reaching consequences.
A Brithish couple, married in 1994, moves to The Netherlands in 1998 and lives there ever since. Would we all know during which period which matrimonial property law is applicable in their case?
Well, strange as it may seem, English law would apply for the first 14 years of their marriage;
however, from 2008 onwards, after having lived in The Netherlands for 10 years, the Dutch rule of community of property would automatically apply to the matrimonial property. In practical terms this means that, in the unfortunate event of a divorce or one of the spouses – or parents, for that matter – passes away whilst abroad in 2010, all property and debts would have to be shared between the partners. The financial consequences would have been completely different would the divorce or death have occurred in 2006 or if the marriage was tied before 1 September 1992.
What are advantages and disadvantages of the pre-nuptial agreement?
The far-reaching consequences of the Dutch property regime can, however, be avoided by concluding a marriage contract or pre-nuptial agreement with your spouse in which the couple designate which country’s law should apply to their matrimonial property. Or, if Dutch law is applicable, make a pre-nuptial agrement to prevent your spouse’s creditors making claims on your property should their business fail. Furthermore, on the termination of your marriage by death or divorce, the debts and assest are divided according to the terms of the contract.
You must, however, keep in mind that prenuptial agreements you make in the Netherlands may not always be recognized in other countries. English Courts, for instance, do not attach great value to prenuptial agreements, even if it contains a choice for antoher law.
Divorcing expats are often stunned by the consequences of the regime of community of assets. Likewise, Duch nationals living abroad often asume that the Dutch regime of community of assets and property is applicable to their matrimonial wealth, if they were married in The Netherlands and have not signed any prenuptial agreement. This, however, is often not the case and things can get messy and complicated. A Dutch couple, married under Dutch law but filing for divorce in a foreign country might find that the international private law of the host country overrules the provisions of Dutch family law, most often to the detriment of the parties.
What can you say about the competence of a judge and applicability of law in case of an international divorce?
More often than not, an international marriage will incorporate aspects that may be subject to different national legislations. Take the circumstances of filing for divorce; in Switzerland and Ireland divorce can be filed for only after a mandatory period of separation. The handling of matrimonial property and the division thereof will differ greatly in Great Britain and in The Netherlands. Spousal and child alimony and the duration thereof are dealt with differently and even the rather obvious question of paternity could be a cause for surprise, depending on the applicable law. International treaties on private law will add to the confusion, as legality and reality will greatly depend on the interpretation of the judge in the local courts.
International couples intending to divorce are therefore well-advised to first examine all available alternatives and the consequences thereof, before establishing the competent court and the applicable (national) law for each of the aspects below:
- the divorce itself;
- parental responsibility and custody for the children involved;
- child alimony;
- spousal alimony;
- division of property and assets;
- division of pension rights.
Sometimes, the application of different national rules of private international law can lead to different, sometimes contradictory results. Suppose it is possible to file for divorce in two different countries and the spouses cannot agree and both file for divorce in different countries, the divorce procedures filed last will have to be suspended, until a ruling is passed in the country where the petition for divorce was filed first.
Have there been any recent legislative changes regarding child custody law?
Since the 1st March 2010, the parenting plan is part of the divorce application process. This means that parents filing for divorce in the Netherlands are obliged to sit down and discuss child related issues like care, development and education before they file for divorce. In this way the Dutch Government wants to reduce the number of problems arising in relation to divorce and parental access. Such a plan will also provide a framework for the parental obligation to promote closer ties between the minor and the other parent. It is in the child’s interest that contact is maintained with both parents. This is in line with the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) and the United Nations Convention on the Rights of the Child (CRC).
Should you have any questions, please do not hesitate to contact Marjet van Yperen – Groenleer.