Developments in international marital property law

In which country can international couples apply for divorce and which law applies? When filing for divorce, couples are often confronted with surprises, especially when it comes to the division of property.

Internationals filing for divorce in the Netherlands come to deal with a unique regulation: ‘the general community property regime’. According to their ‘own’ law, an entirely different regime applies for marital property. Also, Dutch nationals living abroad often have no idea of the regulations on marital property there.

Competent court

Varying national legislation causes for uncertainty among divorcing couples. On 16 March 2015, The European Commission submitted a legislative proposal aiming to clarify to which court international couples can bring their dispute.

In this legislative proposal, divorcing couples can choose the divorce court judge – the judge to whom they bring the divorce proceedings – to also have competence over the division of property, such as the settlement of a pre- or postnuptial agreement. Couples also have another option: instead of staying with the court (judge) that handled their divorce proceedings, the divorcing couple can choose the court of the country whose law they have declared applicable to their marital property regime.

What happens if the spouses do not manage to reach a decision together? In that case, the court uses a number of objective criteria, such as the spouses’ (most recent) permanent address, in order to decide on the country with which the spouses have the closest ties. This may be the country of the court which handled the divorce proceedings or a different country.

Applicable law

The parties may make a choice of law for a particular legal system – that is, within certain boundaries. If they are not able to come to a decision, the court again makes use of objective starting points to decide with which country the spouses have the closest ties, such as the habitual residence of the spouses as well as their nationality.

The coming into force of this proposal represents a rigorous step. Particularly as far as the applicable law is concerned, because this would mean that the Hague Matrimonial Property Convention (1978) no longer applies in European cases. A decision on this proposal will be made in January 2019.