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Expat relationships and relocations

When relationships end, many expats prefer to return to their home country with their children and be near loved ones. Here, I will discuss the legal options, specifically from the position of an expat in connection to relationships and relocations.

The parent wanting to relocate with their children – to another country or back to their home country – needs permission from the other parent. This is mainly because moving affects the contact between the children and the ‘not-moving’ parent. For many expats, this can lead to a difficult situation. During a relationship, it’s easier to make joint decisions about the country of residence. But after separating, it’s often more difficult. Does one parent not consent to the relocation? Then the parent wanting to move can ask the court for a ‘substitute consent to move.

Court criteria

When granting permission to relocate, the court will decide in the best interests of the children. In a Supreme Court ruling, the court determines the criteria by which an application for a ‘substitute consent to move’ should be evaluated. However in practice, the court’s decision often comes down to a] the right–and the need–of the one parent to move and rearrange his/her life and b] the other parent’s right to maintain contact with their children. In many cases, the court finds the importance of children maintaining  frequent contact with the ‘not-moving’ parent, outweighs the wishes of the parent wanting to relocate. On these grounds, a ‘substitute consent to move’ is often denied.

Court decisions

In recent case law however–in the specific situation of expats–a ‘substitute  consent to move’ has been granted by the court. The court then attaches  more importance to the wishes and needs of the parent relocating with their children than to the right of the other parent maintaining frequent contact. This is because the ‘moving parent’ can work and has a house/network in the country of origin. Furthermore, it is taken into consideration that continuing to live in the Netherlands can affect the state-of-mind of the parent wanting to move, which may have repercussions on the children. It is also considered important that the parent staying in the Netherlands can (easily) move to–or at least visit– the country of origin as this parent often has family living there as well. For expats who sometimes feel trapped in the Netherlands after a separation, this is a positive development.

Conclusion

It remains difficult to obtain a ‘substitute consent to move’. As it’s in the best interests of the children to have frequent contact with both parents. However, for expats living in the Netherlands and wanting to relocate or return to their home country with their children, recent case law now offers an opening to obtaining that permission.

Contact

If you have any questions regarding expat relationships and relocations, please do not hesitate to contact us.

Can a Dutch couple abroad always get a divorce in the Netherlands?

Previous blog posts (here and here) mainly focused on whether foreign nationals living in the Netherlands can file for divorce in the Netherlands. This blog post will look at Dutch nationals living abroad and competency of the Dutch court.

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Child maintenance 2021

What you need to know about child maintenance in the Netherlands in 2021 from maintenance specialist Dylan Bertsch.

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Registered partnership: what you need to know

In recent years, fewer and fewer people are married in the Netherlands. At the same time, the number of people entering into a registered partnership is increasing. However, a registered partnership is relatively unknown outside the Netherlands. This article explains what the consequences of a registered partnership may be for you, what the differences between a marriage and a registered partnership are and how a registered partnership is dealt with abroad.

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Who will guard your child when you’re gone?

Historically, if you wanted to designate a guardian for your child, it had to be done by will. Today, a new option is available which makes this process cheaper and easier: appointing a guardian via the parental authority register.

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Top 10 FAQ about divorce in the Netherlands for expats

The world is global, and so are today’s marriages. When it comes to getting divorced this can make it complicated – but for those who wish to divorce in the Netherlands, there are 10 tips which help keep it simple. Get answers to the top 10 most frequently asked questions about divorce for expats living in the Netherlands.

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Help! My ex-partner took my child abroad, what can I do?

The world is global, and so are today’s relationships. With more and more children born into international relationships, the number of travelling families grows. This explains the increase of the number of child abductions. So what can you do if you are the left-behind parent?

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Moving without your partner’s consent

If you share parental authority of your children with your ex-partner, moving into a new home with them is not straightforward and moving abroad without the consent of your ex-partner’s is viewed as child abduction.

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International Child Abduction

Abduction can be extremely damaging for a child and is never the solution to a problematic situation.

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Travelling abroad with children

Don’t be caught unprepared at the airport if you’re flying with your children. Learn what the rules are for travelling abroad with your children.

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Maintenance calculation internationals part 2: extra costs for children

Part 1 of this blog series on maintenance calculation for internationals talked about maintenance for children of internationals. After a divorce within an international family, often the ex-spouses spread over different countries. Contact between the non-caring parent and his/her children therefore incurs more costs than compliance with contact arrangements within national borders. How does the maintenance (alimony) calculation deal with these extra costs?

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Maintenance calculation part 1: children of internationals

Many foreigners live and work in the Netherlands. Particularly in The Hague and surrounding areas, there are many international organisations and companies, including EPO, Estec, OPCW, NATO, ICC, the tribunals as well as Shell and Siemens.

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Child abduction by a parent: it happens more often than one might think

What is child abduction?

In legal terms, child abduction is the removal of a child from his or her habitual place of residence by one of the parents or custodial parent, without the consent and agreement of the (other) custodian or parent. Although it might not be immediately obvious, not returning the child on time, as agreed, after a holiday abroad or after a family visit to the country of origin also counts as child abduction. The same holds for expat families living in The Netherlands for short periods of time or for families living apart most of the time. In these cases, establishing the habitual place of residence of a child is more difficult than may seem at first sight.

Recent case law indicates an increase in the number of child abduction cases. Although each case has its unique circumstances, the increased dynamics of the global work force may be one reason for this development.

The Hague Convention on the Civil Aspects of International Child Abduction 

The Hague Convention on the Civil Aspects of International Child Abduction (1980) is a legal tool. It is meant to help a/the custodial parent regain access to the abducted child. This tool facilitates the return of the minor to his or her habitual place of residence. By appointing a Central Authority in each country, the signatory parties have agreed to co-operate towards the immediate return of the abducted child to his or her habitual place of residence.

The custodial parent can seek assistance from the Central Authority of his or her country of residence. This can be done within one year from the date of abduction. Upon this request, the Central Authority will contact the Central Authority in the country where the child has been removed to. This, in order to quickly return the child to its habitual place of residence. It is advisable, however, that the parent also notifies the police, filing an official complaint for abduction.

Sadly, abductions also happen in countries that are not signatory parties to the Convention. As awareness on such cases has grown internationally, case law catches up with reality. Even when a child has been held in a country that is not a signatory to the Convention against the will of the other custodian parent, quite often they manage to negotiate the return of the child via diplomatic channels. Needless to say, but good to reiterate: countries that are not signatories to the Convention are under no obligation to co-operate.

Is the Central Authority to lose its monopoly position in the near future?

The Eerste Kamer (Dutch Senate) has received a draft law asking to end the monopoly position of the Central Authority in cases of international child abduction. The custodial parent whose child has been abducted might soon be able to take action by hiring a specialised lawyer, should the draft law be passed. This would hopefully speed up proceedings, as well as widening the spectrum of available legal tools.

The mere thought of having to deal with child abduction is harrowing. Prevention is always better than having to resort to cure. Abduction might be prevented by hiding the children’s passports, keeping the channels of communication with the inlaws open or informing the police. It is essential that the parents’ problems remain negotiable; cross-border mediation has prooved to be succesful.

Don’t hesitate to contact us if your child has been abducted, if you are contemplating the abduction of your child or if you are aware of a situation where child abductions occur. Our lawyers have extensive expertise in dealing with cases of international child abduction and are happy to assist you.

 

Forced contact between parent and child

What do you do if after a divorce you, as a child, want to remain in contact with one of your parents, but your parent does not want to stay in contact with you?

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Relocation after divorce: are the children coming or not?

Is a divorced parent permitted to relocate with his or her child without the consent of the other parent? The answer to this question largely depends on the facts and circumstances of the case in question.

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Powers of the Dutch family court with regard to Dutch children abroad

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.

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Relocating with children following the breakdown of a relationship

As society becomes increasingly international, more and more people are forming international relationships. This comes with the added risk that, following a divorce, one of the parents will want to return to his or her home country. Also here in the Netherlands, we are dealing with a growing number of relocation cases, often due to people finding a new love in another part of the country.

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When does Dutch law apply to divorce (part 2)?

Part 1 of this series addressed the application of the Dutch Matrimonial Property Law on the division or settlement of property and assets between spouses in international divorce. This is of special interest for expats in divorce. In part 2 we are going to focus on the effect of the law on maintenance.

Does Dutch law apply to maintenance?

The law applicable to maintenance can be different from the law that applies to the Matrimonial Property Regime.

Child maintenance

Based on The Hague Protocol 2007, the law of the usual country of residence of the person entitled to receiving maintenance is applicable for determining child maintenance. If a Dutch judge receives such a request and the children live in the Netherlands,  the Court will determine child maintenance according to Dutch law.

Spousal maintenance

Based on the protocol mentioned above, in the case of spousal maintenance, the law of the usual country of residence of the person entitled to receiving maintenance applies. There is, however, one exception. If the person obliged to pay spousal maintenance contests this law and the marriage has a closer tie to another country, then that law applies.

The protocol primarily considered the last country in which the parties had a common residence. Numerous factors play a role, such as the location where the marriage took place. Other factors are the length of residence of the spouses in the different countries, their nationality, etc. This possibility to exception can lead to lengthy discussions in international divorce. This holds especially for expats that often have a closer tie to the country of their common nationality.

Be well informed when it comes to maintenance payments. The differences between countries are enormous, especially where spousal maintenance is concerned. The length of the maintenance obligation differs, as well as the amount. In Norway, for example, spousal maintenance does not exist.

Contact

If you are an expat living in the Netherlands and you are involved in an international divorce, please do not hesitate to contact us for advice on how to find the best solution.

 

Changes in international family law

In the EU, most matters of international family law are regulated by the European Commission. The Commission draws upon the Hague Conference on International Private Law. Recently, legislative efforts in Brussels and The Hague have resulted in three significant changes. These changes will reshape some core aspects of international family law.

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