I live abroad. Can I get divorced in the Netherlands?
Whether you may file for divorce via a court of law 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.
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. 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, some issues regarding divorce, such as division and equalisation issues and/or determining maintenance may be settled in the Netherlands in some cases.
How do I get divorced in the Netherlands?
It is always necessary to involve a lawyer if you file for divorce in the Netherlands.
A divorce must always be a court ruling, even if you and your partner agree on everything. 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.
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 come to a divorce covenant assisted by financial or other experts.
There are four broad issues to consider for your divorce:
- An arrangement must be made for the children: where they will live, who has which authority and details of the custody and contact arrangements. The arrangement for the children is set out in a parenting plan if possible.
- 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.
I’m a victim of discrimination - what can I do?
Discrimination can occur during a recruitment process, an application for housing, or in many other situations.
If your application is rejected or your contract is not renewed based on a discriminatory reason (for example due to your religion, gender, pregnancy or sexual preference), you may file proceedings in a court of law. The court may rule that the other party must pay a significant settlement for this unlawful conduct. Alternatively, you may submit a complaint to the Human Rights Institute.
It is recommended that you contact a legal expert in such situations.
Does the non-competition clause in my employment contract still apply?
A non-competition clause must always be agreed in writing. In principle, a non-competition clause in a temporary contract concluded after 1 January 2015 is not valid. This is not the case if specific significant business interests were 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, you have no obligation to offer your employees a pension scheme. However, most companies fall within the scope of a mandatory sector-wide pension fund. In that case, you have no choice: you must pay premiums to the sector pension fund (Bpf) and the employees accrue pension. You may think you have a choice, by not offering your employees a pension or you by arranging a pension via a pension provider. However, you may be confronted with a visit from a representative of the sector-wide pension fund, with a request to pay premiums into the Bpf.
Prevention is better than cure: as an employer, make sure you comply if you fall within the scope of a mandatory pension fund.
You also have a duty of care if an existing pension scheme is amended.
If you have the pension scheme administered by a pension provider and you want to amend the pension scheme, then please remember that the Works Council has a right to approval. In the event of unilateral amendment, the usual strict labour law rules apply. You cannot simply amend a pension scheme by sending participants a letter. You have a far-reaching duty to provide your employees with the correct information regarding the pension scheme and the amendment. This is subject to liability for any pension losses resulting from incorrect or incomplete communication.
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.
During this mandatory period of continued payment of wages, the employer may not terminate the employment contract.
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.
Upon expiry of mandatory continued payment of wages, the employer may terminate the employment contract.
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.