Frequently asked questions
View answers to the most frequently asked questions about Dutch law for expats here
I live abroad. Can I get divorced in the Netherlands?
Whether you can file for divorce at the district court in the Netherlands depends on your and your spouse’s place of residence and nationality. If you and your spouse both have the Dutch nationality, you may file for divorce in the Netherlands wherever in the world you reside.
If one of you or both of you do not have the Dutch nationality, you can still get divorced in the Netherlands if you or your spouse is resident in the Netherlands. If it is a unilateral divorce, you or your spouse do have to live in the Netherlands for a certain period of time. In case of a joint divorce, there is no time limit attached to this.
However, in both situations, this is subject to the condition that the divorce was not first filed in a different country. If this was the case, you cannot file for divorce in the Netherlands.
In all other cases, with very rare exceptions, it is not possible to get divorced in the Netherlands if you live abroad. For example, if you were married in the Netherlands, you have the Dutch nationality but your spouse does not, and you both live abroad, it is not possible to divorce in the Netherlands. This also applies if you both agree to file for divorce in the Netherlands.
Finally: even if you are not permitted by law to file for divorce in the Netherlands, in some cases some issues regarding divorce, such as division and equalisation issues and/or determining maintenance may be settled in the Netherlands.
How do I get divorced in the Netherlands?
To get a divorced in the Netherlands, the assistance of a lawyer is required. This is also the case if you have done mediation.
The divorce is always pronounced by the court in a court ruling, even if you and your partner agree on all consequences of the divorce. You can choose to each appoint your own lawyer, or have the request for divorce filed with the court together with your spouse, using a single lawyer/ lawyer divorce mediator.
In addition to divorce, other requests pertaining to the divorce may be filed to the court of law.
In order to ensure the consultations are a smooth process, you may choose to involve a mediator, or opt for collaborative divorce. The latter is a form of consultative divorce, where spouses or partners each have their own solicitor and attempt to lay down agreements in a divorce agreement assisted by financial or other experts.
There are four broad issues to consider for your divorce (also depending on the applicable law):
- An arrangement must be made for the children: where they will live, who has which authority and details of the parental authority and contact arrangements. If possible, the arrangement for the children is set out in a parenting plan.
- Does an maintenance obligation apply for the ex-partner and child support for the children? If yes, what is the amount of the maintenance?
- How are the assets divided and settled? Is there a community of goods or prenuptial agreement that must be settled or fulfilled? Who will become the sole owner of the home? What will happen to the debts and assets, the home contents and the company if applicable?
- Finally, the pension capital or entitlements accrued during the marriage must be divided between the partners. Generally, partners are subject to statutory pension equalisation.
If consultation with your ex-partner is not possible or you cannot come to an agreement with your ex-partner, the court of law will have to decide on the requests filed. In some cases, an immediate short-term solution must be implemented. Sometimes a court of law takes a long time to fully settle the case. In that event, you have the option of requesting preliminary relief proceedings from the court of law just before or during the divorce procedure.
In a special emergency procedure, you may request a court order regarding the children, maintenance or use of the home.
What am I entitled to if I was disinherited?
Disinheritance means that you were excluded from the inheritance in the will and testament, but you are an heir by law. In some cases, disinherited persons can still exercise certain rights. Children who were disinherited are always still entitled to the statutory share. This concerns a sum of money that amounts to half of the sum that would have been inherited if the person was not disinherited.
A spouse or registered partner that was disinherited is not entitled to a statutory share. However, such a partner has a number of practical rights, such as the right to temporary continued use of the home and contents or even permanent usufruct of the home or other goods. If you are disinherited, this does not mean you are always left empty-handed.
What are my rights and obligations as an heir?
As an heir, you can personally determine what to do with an inheritance (estate). You may reject it, accept it ‘as is’ or accept it as a beneficiary. Rejection means you waive any right or entitlement to both the revenue and expenses (debt) of the estate. In that event you will not receive anything, but you are also not liable for any debts or expenses.
Accepting an estate as is means that you accept both the ensuing revenue and expenses. It means all assets and liabilities are now yours. For heirs under the age of 18, acceptance of an estate in this way is not possible by law. Please remember that certain actions (such as, in some cases, selling goods that are part of the estate) may constitute acceptance as is.
Beneficiary acceptance means your own funds and assets are safe. Your income or wealth cannot be claimed by any creditors of the deceased. Any sums payable from the deceased’s estate will be paid only if the estate has sufficient funds. Such acceptance as a beneficiary only is generally a preferred option if the heir suspects that the liabilities exceed the assets.
Heirs who do not reject will have to jointly accept responsibility for settlement of the inheritance in order to divide the estate.
An executor, if appointed by will and testament, is responsible for settlement of the inheritance. The executor first prepares a description of the assets and goods, pays any sums payable and debts, and divides the remainder. The executor is responsible for further settlement and the heirs must make their claims to the executor.
Does the non-competition clause in my employment agreement still apply?
A non-competition clause must always be agreed in writing. In principle, a non-competition clause in a temporary contract is not valid. In exceptional cases, a non-competition clause in a temporary contract can be valid, if specific significant business interests for including this clause are explained in the clause in this specific case (and are actually significant).
In principle, in permanent contracts (non-temporary), the clauses agreed apply and these are binding to the employee. However, a valid clause may still be deemed unreasonable or objectionable. In such an event, the employee may request the court of law to restrict or void the clause.
I’m an employer. What is my duty of care in pensions?
As an employer, in principle, there is no obligation to offer your employees a pension scheme. This is different if your company falls under the scope of a mandatory sector-wide pension fund. In that case, you must pay premiums to the sector pension fund (Bpf) and the employees accrue pension.
Please consult one of our lawyers to determine if your company falls under the scope of a sector pension fund (Bpf).
If you do offer employees a pension scheme outside the obligation of the sector pension fund, you also have a duty of care if the existing pension scheme is amended. In that case, the appointed Works Council has a right of consent. Moreover, as pension is an employment condition, in changing the conditions for pension the strict labour law rules apply.
As an employer, do I need to continue paying wages to my employee on sick leave?
Employees on sick leave are entitled to continued payment of wages during the first two years of sick leave.
The law sets out an entitlement amounting to 70% of the salary, with a minimum of the statutory minimum wage. Many employment contracts and collective labour agreements (CLAs) set out that more than 70% is paid out.
The employee’s right to wages is conditional. The employee must cooperate in reintegration and wage sanctions may be imposed for non-compliance. After two years of sick leave, continued payment of wages is no longer mandatory for the employer, unless UWV (the Employee Insurance Administration Agency) has concluded that the employer did not fulfil their reintegration obligations. In that event, the employer may be subject to mandatory continued payment of wages for another period of time, with a maximum of one year.
During the two years of sick leave, a prohibition for termination is applicable. Upon expiry of mandatory continued payment of wages, this prohibition for termination ends.
As an employee, when am I entitled to an indefinite term contract?
Under Dutch law, the number of succeeding fixed term employment contracts is limited to three, but the total duration of fixed-term contracts may not exceed three years. The fourth contract or after the three years is automatically for an indefinite term. An interval of six months between contracts breaks the chain of consecutive temporary contracts. Please be informed that deviating arrangements could follow from the applicable CLA (collective labour agreement).
I want to switch jobs, what rules do I need to take into account when terminating my employment contract?
If you have an indefinite term contract, you can terminate the employment agreement by giving notice taking into account the notice period as agreed upon in your employment contract. This is often the statutory notice period, which is one month for the employee. Notice must also be given at the end of the month. For example: if you want your last day of your employment to be on the 30 of April, you need to give notice ultimately on the 31 of March. Your employment contract may also include a different notice period. Note that if the employee’s notice period is more than one month, the employer’s notice period should be double. The collective agreement may also contain a different notice period.
If you have a temporary employment contract, it is only possible to terminate early if there is an interim notice clause in the employment contract. This clause prescribes the notice period to be observed. Similar as in an indefinite term contract, this can be the statutory notice period of one month or a longer notice period, taking into account the above stated.
What are the Dutch rules on dismissal?
The Dutch employment law system for dismissal is protective of employees. In most cases, the employer needs prior permission from the Employee Insurance Administration Agency (UWV) or the court to terminate employment. The employer has to have a reasonable ground for dismissal and redeployment in a suitable position within the company is not possible. Termination during the trial period and summary dismissal (such as in case of fraud or theft by the employee) is an exception to this rule.
What are the legal implications of a trial period and when can this be validly agreed upon?
A trial period can be agreed upon in writing in the first employment contract. If the employment contract has a duration of six months but less than two years, the maximum trial period is one month. For fixed term contracts with a duration of more than two years or for indefinite term contracts, the maximum duration of the trial period is two months. Trial periods in an employment contract with a duration of less than six months are invalid.
During the trial period, both the employer and employee can terminate the employment agreement without having to take into account a notice period.
Am I entitled to compensation when my employer terminates my employment contract or does not extend my temporary contract?
Yes, if the employer terminates the employment contract or does not extend the contract, then you are entitled to the statutory transition compensation (in Dutch: transitievergoeding). This payment amounts to 1/3 of your monthly salary multiplied with the duration of your employment with the employer in question. There is no entitlement to the transition compensation if the termination or non-extension of the contract is a result of grave culpable behaviour from your side.
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