Is it always possible for homosexual couples to file a divorce in the Netherlands? Since 2001, Dutch law recognises marriage between two persons of the same sex. With recognition of same-sex marriage, the Netherlands also offers the possibility for same-sex couples to file for divorce.
In many states, however, same-sex marriage is not recognised by law. Often, this makes same-sex marriage not merely a legal, but also a political, social, and religious issue of debate.
Differences in national legislation on same-sex marriages can lead to strange results within an international context. For example: a couple marries in a state which recognises same-sex marriage. This couple moves to a state that does not recognise same-sex marriage. After a couple of years they decide to file for divorce.
They are not able to get a divorce in the state they live in because that state does not recognize their marriage. On the other hand, they need a divorce in order to be recognised as unmarried in the country they used to live in.
Same-sex divorce in The Netherlands
According to Dutch law, when both spouses have Dutch nationality, filing for divorce in the Netherlands – even if they do not reside here – does not present a problem. For same-sex couples who do not have Dutch nationality, but at least one of them lives in the Netherlands, there should be no problem to file for divorce in the Netherlands either.
But what if a couple does not meet these requirements?
When a couple does not meet the requirements, strictly speaking, they would not be able to get a divorce in the Netherlands. However, Article 9 of the Wetboek Burgerlijke Rechtsvordering could be called upon. According to this article the Dutch Court has jurisdiction if a procedure outside the Netherlands is impossible or if there is a connection with the Dutch jurisdiction. Case law on this issue, unfortunately, does not exist yet. A decision principle would be very interesting indeed.
Get advice on your rights
If you’d like to know more about your rights as a same-sex married couple, or you need advice about a same-sex divorce, contact our expat family lawyers for advice.
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.