A previous blog post discussed the obstacles encountered by Dutch nationals living abroad wishing to arrange their divorce in the Netherlands. In principle, filing for divorce in the Netherlands when abroad is only possible when both spouses have Dutch nationality.
It becomes even more challenging if provisions must be made for Dutch children whose habitual residence is abroad.
Jurisdiction in the Netherlands
As a general rule, the Dutch court is only competent to make provisions for Dutch children whose habitual residence lies within the Netherlands. This is because the court who has jurisdiction in the child’s habitual residence is deemed to be in the best position to make provisions. Therefore, if you and your family live abroad as Dutch expats, you normally cannot request the Dutch court to make contact arrangements or ask permission to relocate with the children.
However, this general rule does have a limited number of exceptions. The two main cases when the Dutch court does have competency are:
- When both parents agree on the international competency of the Dutch court and they have met a number of conditions. This is, even if the child’s habitual residence is elsewhere. In practice, however, for the parents to come to an agreement is often problematic.
- When the court deems itself able to properly assess the best interest of the child. This is, because of a connection to the jurisdiction of the Dutch courts. This exception can only be relied upon when no convention or regulation applies. This specifically applies when the child’s habitual residence is not in a member state of the European Union or in a country party to the The Hague Child Protection Convention (1996). Both literature and case law show that the court practically never honours such requests for exception. For example, a child with Dutch nationality does not suffice to create sufficient connection with the jurisdiction of the Dutch courts.
The above comes to show that if you and your Dutch child(ren) reside abroad, you can practically never ask for a decision by the Dutch court if your partner does not agree to this. You will need to apply to the court of the country in which you normally reside. This can be difficult in some countries, and the law differs from country to country.
Facing divorce with children?
If you’re facing divorce in the Netherlands and need advice on how to find the best solution for you and your children, please contact us; our experts in family law will be glad to help.
Marjet Groenleer is an attorney-at-law and associate partner at GMW lawyers in The Hague. She has been active in family law for more than 15 years, focused on on (international) divorces. Marjet is a trained divorce mediator with the vFAS (Dutch Association of Family mediators and lawyers).
Marjet has a particular interest and a profound knowledge of the international aspects of family law. She is an expert in dealing with complex financial and multi-jurisdictional cases of an international family breakdown. Because of her experience and previous jobs, she is familiar with several foreign legal systems. A great number of her clients are expats. She understands the needs of expats working for the various international organisations and companies based in The Netherlands, specifically in the area of The Hague (lsuch as EPO, Estec, OPCW, NATO, the tribunals, ICC, Shell, etc.)
Marjet worked as a lecturer in International Civil Law for several years and at the Court of Appeals in The Hague in the family law sector. Today, she is a deputy judge in the Court of Appeals in Amsterdam. Marjet publishes regularly in professional journals and keeps you informed of the various complex aspects of (international) divorces with her weblogs.