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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. Marjet Groenleer answers the top 10 most frequently asked questions about divorce for expats living in the Netherlands.

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Marjet Groenleer - Expat lawyer (family law)

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.

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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Marjet Groenleer - Expat lawyer (family law)

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.

Attention divorcing Aussies!

Suppose you are an Australian, now living in The Netherlands. While you were living in Australia, you got married. During your marriage, you received an inheritance following your parents’ death in Australia. You’re now facing divorce in The Netherlands. Do you have to share your inheritance with your ex?

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Marjet Groenleer - Expat lawyer (family law)

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.

Divorce: nowhere easier than in the Netherlands

There are an enormous number of things that make up a divorce. Not only the divorce petition itself, but also various further arrangements which the spouses need to agree upon. These include the parental contact, maintenance (alimony) and the allocation of assets. Agreeing on divorce arrangements is no easier in the Netherlands than any other country. However, obtaining a divorce in the Netherlands is easier.

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Marjet Groenleer - Expat lawyer (family law)

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.

Pay your ex-partner’s divorce costs?

Most Dutch marriages are still based on community of property. But who pays the lawyers’ costs in the event of a divorce? Does this come under the marital estate or do the spouses pay their own costs?

Community of matrimonial property

If community of property applies to your marriage, all your assets and debts as well as those of your partner are jointly owned. As soon as an application for divorce has been lodged with the courts, this community ceases to exist. From then on each partner is responsible for their own affairs again. It may be that some time elapses between the moment you decide to separate and the moment that the application for divorce is filed with the court. If you need a lawyer during this interim period, it raises the question of who is liable for the legal bills.

Legal costs during divorce proceedings

Usually in a divorce case, each partner pays their own legal expenses, or to put it better, the costs of the legal proceedings are reimbursed. Legal bills pertaining to the period after the community of property has been dissolved are no longer included in the community because it no longer exists. Each partner therefore has to meet their own costs, but what about the costs relating to the period before the community was dissolved?

Supreme Court judgment: should legal costs be included in the community of property?

The Supreme Court recently issued an interesting judgment concerning the payment of legal costs for dissolving the community of property. The Court of Appeal had ruled that these costs formed part of the community because the community still existed when they were incurred. But in the Supreme Court’s opinion this was too simplistic. Even where a 50/50 division of these costs is a big stretch, exceptions are only occasionally made in extremely unusual situations. On the other hand, exceptions to the general rule that the costs of bringing legal proceedings should be recuperated are rarely made either. Unsurprisingly, these two fundamental principles are often at odds with each other.

What now?

It remains unclear what the rule will be from now on. All the Supreme Court’s judgment means is that the Court of Appeal did not substantiate its decision sufficiently and the case has been referred to another appeal court for a final judgment that will take the Supreme Court’s point of view into account. As long as there is no general rule for the situation described above, it will be left to the judge to decide whether the legal expenses submitted to him or her are reasonable. So for the time being it is not clear whether or not you will have to foot the bill for your ex-partner’s legal expenses.

Marjet Groenleer - Expat lawyer (family law)

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.

When does Dutch law apply to divorce?

Although Dutch divorce law stipulates rules about pensions, for internationals in the Netherlands going through a divorce, it may very well be that a different law is applied to the question of spousal maintenance from the law applied to the matrimonial property. In order to determine which law should be applied in respect of maintenance we need to consult other sources besides the Hague Marriage Convention of 1978.

Child maintenance

Under the Hague Protocol of 2007, the law of the country where the person entitled to spousal  maintenance usually resides is used when considering applications to determine child maintenance. Where an application of this kind comes before a Dutch judge and the children are living in the Netherlands, child maintenance will be determined according to Dutch law.

Maintenance for partners

Under the aforementioned protocol, the law of the land where the partner who is entitled to maintenance usually resides also applies in cases of maintenance for partners. However, there is an exception to this rule. If the partner who is liable for maintenance disputes the application of this country’s law and the parties’ marriage has closer ties to another country, that country’s law will apply. The drafters of the protocol specifically had in mind the country where the parties last lived together.

Various factors are involved, such as the place where the couple were married, how long they lived in different countries as a married couple, their nationalities etc. This potential exception can give rise to disputes in international divorces, especially for internationals who often have a closer relationship with another country, for example if they share the same nationality.

Make sure you are well informed where spousal  maintenance is concerned. The differences between countries is large, especially in respect of maintenance for partners. The duration of maintenance payments varies, but the amount can also differ considerably. Norway, for example, does not even recognise the concept of maintenance for partners.

 

Marjet Groenleer - Expat lawyer (family law)

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.

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

Joint parental authority

When both parents share custody, consent is required before moving. Custody relates to the rights and responsibilities that parents have for their children. Custody confers decision-making rights, including the authority to decide where a child should live. Parents with joint custody have an equal say in their children’s domestic situation. If one parent moves without the consent of the other parent, it will count against them in court proceedings.

Unilateral measures are not viewed favorably. A parent in this position will need to have very good reasons why the judge should not order them to move back, though this obviously depends on the age of the children, how long they have been in their new home and other factors.

Sole authority

Where you have sole custody of your child, there is no official requirement to seek the consent of your ex-partner before moving with your child. However, in recent times courts have drawn different conclusions.

One example is a provisional ruling by the Midden-Nederland district court  in 2014. The mother had sole parental responsibility but their son lived with his father for half the time. The mother moved without the father’s consent. The distance involved meant they effectively no longer shared parental duties. The court granted an injunction on the basis that despite having sole custody, the mother was not free to move home with the parties’ son without his father’s consent. Father and son had a strong bond and had always lived together in a family situation. Moving compromised the interests of the father to an unacceptable degree. The court concluded that the interests of the parties’ son was best served if he continued to live in the previous settled situation. The mother had already moved home. This meant the court provisionally entrusted the father with the parties’ son pending a permanent decision on where the son should live.

Conclusion

We can draw 3 conclusions from this judgment:

  1. Even if you have sole custody, it does not necessarily mean that you can move with your child to a new home without your ex-partner’s consent.
  2. If you move home without the consent of your ex-partner, be aware that this will not be approved retrospectively by a court. Judges are not impressed by parents who act unilaterally.
  3. You should be aware that in such cases the court may well rule that your child should live with your ex-partner if they have requested this.
Marjet Groenleer - Expat lawyer (family law)

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.

Statutory indexation of child and spousal alimony

Each year, the Minister of Justice determines the alimony index. For 2018, due to inflation, the percentage is 1.5%. This means that the allowance concluded in your divorce convenant or court order has an automatic increase of 1.5% as of January 1, 2018. This percentage is based on the labor price index, determined by Statistics Netherlands (Centraal Bureau voor de Statistiek/CBS).

Retroactive effect

The individual paying maintenance (alimony) has to adjust the amount him- or herself – a request from the entitled party is not necessary. However, it is advisable to remind your ex-spouse on time. There are many individuals whose alimony has never been indexed, either because of ignorance or on purpose. Fortunately, individuals can claim the amount up to a maximum of 5 years with retroactive effect.

Example

A quick example to illustrate what this means in practice:

Suppose, in 2014 your alimony is € 1.000 per month. Taking into account the index percentage from 2015 until 2016, you can claim € 349,20 as unpaid alimony. From 2018 onwards you will be entitled to €1.058,18.

In case your ex-spouse has not paid you the indexation over the years, it is advisable to inform your ex-spouse in writing and point out he or she has the legal obligation to pay.

Exceptions

There are, as ever, a couple of exceptions to the indexation rule:

– if the former spouses made different arrangements;
– if the judge excluded indexation (temporarily);
– in the case of alimony agreements dating from before 1st January 1973. Arrangements made before this date concerning the amount will apply unimpaired.

Should you have any questions on this subject or any related matters, please do not hesitate to contact us.

Update article: December 2017. 

Dylan Bertsch - Expat lawyer (family law)

Dylan Bertsch is a specialist in family law and inheritance. Diligent and outcome-focused, Dylan helps his clients through advice, mediation and representation in court.

Within family law, Dylan assists with complex divorces, prenuptial agreements, the division of commonly held property, first name changes and maintenance cases. He pays particular attention to the interests of children.

Dylan also helps individuals and professional parties with a broad variety of inheritance cases, addressing issues such as establishing the statutory share, property rights (usufruct), powers and dismissal of executors and the appointment of liquidators.

Misconceptions in international family law

More and more, people find love across the border. They fall in love with someone living abroad or with a different nationality. While the relationship flourishes all is fine, but what if the marriage fails? Divorce is a difficult process in many ways – a low point in anyone’s life. On top of this, an international divorce involves extra complications. People have various questions concerning divorce. So, what are the biggest misconceptions when it comes to international divorce?

Misconceptions

Most people are unfamiliar with Dutch International Private Law. Consequently, there are various misconceptions concerning the possibilities for divorce and divorce settlement:

1. The divorce settlement will take place in the country of my marriage.
In the Netherlands, the place in which the marriage was contracted is not relevant to the competence of the court nor to the applicable law.

2. Returning to my home country with the children isn’t child abduction.
It is not child abduction if you have the permission of the other parent (who has custody) to leave. However, he or she might not give his/her consent. In this case, you have the possibility – and the duty – to ask the court for substitute consent.

3. Any lawyer is able to handle international divorces.
No, family law is a discipline of its own. Thus, hiring a specialised family lawyer is an absolute must. Specifically, involving a lawyer with an international family practice would be beneficial.

4. If divorce takes place in the Netherlands, this will be settled according to Dutch law.
No, for each individual subject the court determines which law is applicable. This is based on various national and international rules – this could even be a foreign legal system.

5. I don’t need to respond to documents from foreign courts because they can’t affect me.
No, this is not true, please do respond. Ignoring such documents can lead to a foreign Court Order being made in which, for example, you are to pay sky-high alimony. In most cases execution of a Court Order like this takes place in the Netherlands.

6. The reason for divorce matters.
According to Dutch law it isn’t relevant. In some countries, for example the UK, the reason for divorce could be important for the arrangement of alimony or division of assets. However, in the Netherlands it is not.

 

This article was updated November 2017.

 

Marjet Groenleer - Expat lawyer (family law)

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.

A divorce under common law in the Netherlands

In most European countries, the legal system is based on Roman law, with the law laid down in codes. In Anglo-American countries, the law, known as common law is laid down in jurisprudence based on customary law. Countries such as the United States, the United Kingdom and Australia have a legal system based on customary law. In practice, this difference in approach can cause problems in divorce cases involving both legal systems.

Applicable law

When a divorce takes place in the Netherlands, the law that applies to maintenance (alimony) differs from the law concerning the settlement of assets. This is complex enough in itself. However, when a divorce takes place in the Netherlands, it is not necessarily the case that solely Dutch law applies. In some cases, Dutch law applies to the maintenance arrangements and for instance English law (or the law of another common law country) applies to the settlement of assets, or vice versa.

Dutch law

In the Netherlands, as mentioned above, maintenance and assets are two separate issues. Maintenance (alimony) covers income, compensation for loss of earning capacity during the marriage, and a monthly payment to enable the former spouse to maintain the same standard of living. The needs of the person entitled to maintenance, based on their financial circumstances during the marriage, are the point of departure.

The financial settlement is a separate matter, as this is concerned solely with assets. Settlement of assets takes place on the basis of the pre- or post-nuptial agreement. When no pre- or post-nuptial agreement was signed, the couple automatically married in community of property, and the assets are divided equally. With the division of assets, the income component is left out.

English law

In England, maintenance and assets are lumped together. If the former spouses cannot come to an agreement, the court determines what it considers to be a reasonable lump sum which one spouse must pay the other. As a matter of fact, the only yardsticks of the court are reasonableness and fairness.

In some cases, in addition to the lump sum, one must pay the former spouse monthly maintenance. In other cases, as well as paying the ex-spouse a lump sum, the higher earning partner needs to transfer ownership of a house to the former spouse. This is known as the reallocation of assets which Dutch law does not permit.

When determining the division of assets, the court looks into factors including each spouse’s earning capacity, the needs of the person entitled to maintenance and the financial circumstances during the marriage. In short, regarding the division of assets, in England the court takes into account the income components. In the Netherlands, the court disregards income components and instead considers these when determining the amount of maintenance.

Contact

Maintenance and assets are part of the same pot under English law. Under Dutch law they are completely separate. Thus, it is impossible to apply both English and Dutch law to the same divorce. There is no “one size fits all” solution, so a tailor-made approach is necessary. GMW lawyers can offer you just that.

If you have any questions, please do not hesitate to contact us.

 

Update article: November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

International and Dutch matrimonial law Q&A

One of the less obvious effects of globalisation is the growing number of international marriages worldwide. Online news platform Lawyer Monthly did an interview with international family law experts Antoine de Werd and Marjet Groenleer from GMW lawyers, The Hague, the Netherlands. The interview was about the marital property regime as well as issues of competence and applicable law in divorce cases in The Netherlands.

How does the Hague Convention affect matrimonial property regimes?

Legally speaking, an international marriage is not limited to a family unit where the spouses have different nationalities. An English couple moving to the Netherlands also has an international dimension. The same goes for a Dutch couple with immovable property abroad. Only when both you and your spouse have Dutch nationality from the moment of marriage, have always lived in the Netherlands and/or have no assets abroad, Dutch law is always applicable. In all other cases there is an international element.

Each country, according to its Private International Law, decides on the applicable regime to the matrimonial property of spouses. In the Netherlands, for marriages entered into after September 1st 1992, the Hague Convention (1978) on Private International Law decides when couples with an international dimension are subject to Dutch matrimonial law or to the corresponding law of another country. As the financial implications of the applicable national law can differ widely per state, the Hague Convention can have tremendous consequences.

What if Dutch law is applicable to your matrimonial property?

If Dutch law is applicable, the matrimonial regime of ‘general community of property’ applies. This is, if you have not made a pre-nuptial agreement stating otherwise. This means that you and your spouse’s assets and debts are shared from the moment you marry. This concerns assets and debts acquired either previous to the marriage or amassed following an inheritance or gift – and is independent of the name in which the assets or debts have been registered, . If the marriage ends as the result of a divorce or death of one of the partners, the property is divided equally among the partners.

What are advantages and disadvantages of the pre-nuptial agreement?

The far-reaching consequences of the Dutch property regime can, however, be avoided by concluding a marriage contract or pre-nuptial agreement. In this agreement, the couple indicates which country’s law should apply to their matrimonial property. Or, if Dutch law is applicable, make a pre-nuptial agrement to prevent your spouse’s creditors making claims on your property. Furthermore, on the termination of marriage by death or divorce, the debts and assest are divided according to the terms of the contract in the case of a pre-nuptial agreement.

You must, however, keep in mind that not all states recognize pre-nuptial agreements made in the Netherlands. English Courts, for instance, do not attach great value to pre-nuptial agreements, even when it contains a choice for the law of another state. Divorcing expats are often stunned by the consequences of the regime of the community of assets and property. Likewise, Duch nationals living abroad often assume that the Dutch regime of community of assets and property is applicable to their matrimonial wealth, if they were married in The Netherlands and have not signed any prenuptial agreement. This, however, is often not the case and things can get messy and complicated. A Dutch couple, married under Dutch law but filing for divorce in a foreign country might find that the international private law of the host country overrules the provisions of Dutch family law, most often to the detriment of the parties.

What can you say about the competence of a judge and applicability of law in case of an international divorce?

More often than not, an international marriage will incorporate aspects that may be subject to different national legislations. Take the circumstance of filing for divorce; in Switzerland and Ireland divorce can be filed only after a mandatory period of separation. The handling of matrimonial property and the division thereof will differ greatly in, for example, Great Britain and in The Netherlands. These states deal differently with spousal and child alimony and the duration thereof. Even the rather obvious question of paternity could be a cause for surprise, depending on the applicable law. International treaties on private law add to the confusion. This is bacause legality and reality greatly depend on the interpretation of the judge in the local courts.

International couples intending to divorce are therefore well-advised to first examine all available alternatives and the consequences thereof, before establishing the competent court and the applicable (national) law for each of the aspects below:

  • the divorce itself;
  • parental responsibility and custody for the children involved;
  • child alimony;
  • spousal alimony;
  • division of property and assets;
  • division of pension rights.

Sometimes, the application of different national rules of private international law can lead to different, sometimes contradictory results. Suppose it is possible to file for divorce in two countries and the spouses cannot agree and file for divorce in both countries. In this case, the divorce procedures filed last will have to be suspended, until a ruling is passed in the country where the petition for divorce was filed first.

Have there been any recent legislative changes regarding child custody law?

Since March 1, 2010, the parenting plan is part of the divorce application process in the Netherlands. This means that parents filing for divorce have the obligation to discuss child related issues like care, development and education before they file for divorce. This way the Dutch Government wants to reduce the number of problems arising in relation to divorce and parental access. Such a plan also provides a framework for the parental obligation to promote closer ties between the minor and the other parent. It is in the child’s interest that contact is maintained with both parents. This is in line with the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) and the United Nations Convention on the Rights of the Child (CRC).

Do you have a question about matrimonial law in The Netherlands? Please contact us – we’ll be glad to help.

 

Antoine De Werd - Expat lawyer (family law)

Antoine de Werd is a partner and head of the family law section at GMW lawyers. He studied Business Law at the University of Leiden and was admitted to the The Hague Supreme Court Bar in 1989. Immediately after, he started GMW lawyers as one of the founders.

Throughout his career, Antoine has concentrated on resolving financial disputes involving high net worth individuals and families. He is one of the few male specialised divorce lawyers in the Netherlands and has substantial legal experience in (international) divorces, especially those involving companies, complex maintenance claims, division of assets/property, retirement benefits and set-off clauses.

Antoine understands that divorce and separation are difficult times. Rather than focusing on the current painful situation, Antoine helps his clients achieve their goal: getting the best solution for their divorce.

A trained mediator as well as a collaborative divorce practitioner, Antoine is also an experienced litigator, so should an out of court settlement fail, he will represent you in court.

Antoine is a member of the Association of Family lawyers and Divorce Mediators (vFas) and  the Association of Collaborative Divorce (VvCP).

Affairs and other grounds for divorce

Many people still believe that the courts are interested in the grounds for divorce. This is a common misconception because the truth is, the courts do not care about the reasons for divorce. 

When filing a petition for divorce, all that is necessary is that ‘the marriage has irretrievably been disrupted’. This is a catch-all term covering anything that can cause the end of a marriage. This includes an affair, abuse or simply irreconcilable differences which make it impossible to remain married.

Affair and divorce

For many people, an affair is the worst thing that can happen in a marriage. In our practice, of course, we understand this and we are always willing to lend an ear. Life in general, and divorce in particular, is an emotional matter. Someone who is still dealing with the immediate emotional aftermath of a decision to get a divorce, whether or not the decision was their doing, is not always entirely objective. Even less so they can be expected to make sensible decisions in such a fragile emotional state. Often, the first time they come to see us, people just want to offload and at first we try to not talk too much about the details of the divorce process. A recent ruling by the Court of Appeal in The Hague is interesting in light of the above.

Case law

The facts of the case are as following: 

A man and a woman are in a relationship (but not yet married) and they are living together in the man’s house. The woman then discovers she is pregnant and they decide to get married. Before the wedding, they have a prenuptial agreement drawn up by a notary. One of the stipulations of the agreement was: “that, in the event of divorce, the home and the mortgage on it will be included in the divorce settlement”. In 2010 they get married and the baby is born. One year later, a DNA test reveals that the man is not the baby’s father and he promptly files for divorce. The husband feels deceived; he entered into the marriage under the assumption that he and his wife were expecting their baby.

In the divorce proceedings, the husband argues that he cannot be held to the prenuptial agreement, invoking the grounds of reasonableness and fairness. His reasoning is as follows:

  • His wife used her pregnancy to trap him and persuade him to marry her, under the misapprehension that he was the father;
  • The wife was interested only in a financial gain (she was a gold digger, in other words) because the stipulation about the home was included in the prenuptial agreement at her explicit request;
  • His wife should have told the husband about her adultery.

In short, the husband states that the wife misbehaved and that he would never have married her had he known he was not the baby’s father. The court sides with the husband, but the wife appeals.

Court of Appeal

The Court of Appeal takes an entirely different view of the case. The Court argues that the husband had failed to prove that he was not aware of the wife’s deceit at the time of marriage. Therefore he had reason to suspect that he may not be the child’s father. The Court makes this assumption despite the fact that the husband submitted numerous witness statements to the proceedings. What comes to light during the hearing? The husband knew that the wife had already deceived him on a number of occasions. Also, while she was in a relationship with him, the wife had twice fallen pregnant by other men. So, the Court argued, the husband was forewarned when he entered into the marriage.

Perhaps unnecessarily, the Court also considers that, even if it had already been established that the husband was not aware of the wife’s deceit at the time of marriage, the decision would have been no different, because none of the circumstances of this case are so unusual that they justify waiving the prenuptial agreement on the grounds of reasonableness and fairness. The Court believes there is no connection between the prenuptial agreement and presumed paternity.

Conclusion

The only possible conclusion is that, if one party enters into a marriage under false pretenses, little can be done about it. From a legal perspective, that person is treated no differently than the other person who enters into a marriage with the best intentions.

If you have any questions, please do not hesitate to contact us.

Update article: December 2017. 

 

Susan Meijler - Expat lawyer (family law)

Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.

Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.

Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.

What happens to your pet after divorce?

In 2005, Rhodesian Ridgeback named Paco caused a royal controversy. Dutch Princess Margarita was brought to court by her ex-husband, who wanted the court to award him visitation rights with the dog pet. What does Dutch law say about pets after divorce?

Perhaps you started out your relationship by adopting an adorable puppy together, but now the relationship has ended. What happens to man’s best friend?

Property dispute

Dutch law treats your pet, whether it has fur, feathers, scales or otherwise, as part of the household property. The Dutch legislative authority is very careful in its wording regarding animals. However, for the purposes of settling a divorce, the court treats a pet in the same way as any other household good.

This means there is no legal framework for visitation rights with a pet, like is the case with a child.  If the pet is considered joint property, the court will award ownership to one of the parties. You might think your pet is priceless, but during the property settlement, he or she will be given a value.

Should you or your ex-partner be unable to bear the thought of leaving your pet behind, you can arrange for joint ownership. Sharing ownership of the cat would be similar to sharing ownership of the house. You and your ex-partner can negotiate when each of you has access. It’s also possible that, if you brought your pet into the relationship, you may be eligible to keep him/her after the relationship ends.

The best interest of the pet

Recently a court in Limburg ruled that the best interest of the animal should be taken into account when determining custody. Animal experts advised the court that multiple homes for, in this case, a dog was not ideal. It’s not clear what ramifications this ruling may have on other divorce settlements. Time will tell whether or not this will be the start of a new trend in pet-related divorce settlements.

Princess Margarita’s ex-husband was denied visitation with his dog. No matter how much he loved his four-legged friend, under Dutch law he is not eligible for parental visitation as a dog parent.

Contact

If you want to ensure that your pets (and all of your other assets) are cared for during a divorce, lawyers at the Legal Expat Desk can assist you. We are specialised in family law for internationals living in the Netherlands. We can answer your questions regarding divorce, parenting plans, asset allocation and much more.

Please do not hesitate to get in touch with us.

 

This article was updated November 2017. 

 

Thijs Sarneel - Expat lawyer (family law)

Thijs Sarneel specialises in family and inheritance law. Within family law, Thijs negotiates and litigates on behalf of his clients, who often include entrepreneurs and expats (or their partners). In such cases, the emphasis is frequently on complex settlements, the division of companies and real estate and financial issues. In inheritance law, Thijs is involved in the division of estates and family businesses, frequently in an international context.

Thijs provides an analytical approach with a strong sense of purpose, efficiency and strategy, in order to identify the heart of your problem, then find a suitable solution.

Because of his special interest in the art world, Thijs also regularly deals with matters in the field of art and law.

Same-sex marriage & divorce

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.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

September 8, 2017: The Day of Divorce

Friday, September 8 is the Day of Divorce. This is a day when you can obtain information about divorce from specialist lawyers. The Day of Divorce is organised by the professional association of family law practitioners and divorce mediators (VFAS). This year GMW lawyers is taking part in the Day of Divorce and throwing our doors open. The advice you receive in a consultation with one of our lawyers will cost you nothing.

Who is the Day of Divorce for?

We are there on the Day of Divorce to answer your questions not just about divorce, but also in cases of a relationship breakdown where you are not married, whether it concerns you, a family member or someone you know. At our offices GMW lawyers can help you with your questions about the different ways of approaching divorce, what arrangements need to be made in a divorce and who is best able to help you.

What issues come up during divorce?
There are lots of things to consider in a divorce. Do you want to arrange the divorce together or separately? Through the courts, by mutual agreement or via a mediator? What should you do about children? What arrangements need to be made for them? Divorce also often brings big financial issues into play: maintenance for partners and children, division and/or calculation of assets. And of course your pension: what can and should you do about it? Or private businesses. A separate section of our divorce practice deals with businesspeople and their partners.

Why take legal advice?
It makes sense to get the best possible support in a divorce. This might be for the sake of the children, to maintain good relations in the future or for financial reasons. Good legal advice is essential in all these situations.

Who can I speak to on a no-obligation basis?

GMW lawyers’ family law specialists will be happy to help you with your questions on the Day of Divorce. They deal with divorce cases on a daily basis, both national and international. They represent their clients in court proceedings, as mediators or as advisers in the background, with all due discretion.

Free 30 minute consultation

GMW lawyers cordially invite you for a free 30-minute consultation. We are happy to answer all your questions on the subject of divorce. Please provide your details via the GMW lawyers website. We look forward to helping you.

Antoine De Werd - Expat lawyer (family law)

Antoine de Werd is a partner and head of the family law section at GMW lawyers. He studied Business Law at the University of Leiden and was admitted to the The Hague Supreme Court Bar in 1989. Immediately after, he started GMW lawyers as one of the founders.

Throughout his career, Antoine has concentrated on resolving financial disputes involving high net worth individuals and families. He is one of the few male specialised divorce lawyers in the Netherlands and has substantial legal experience in (international) divorces, especially those involving companies, complex maintenance claims, division of assets/property, retirement benefits and set-off clauses.

Antoine understands that divorce and separation are difficult times. Rather than focusing on the current painful situation, Antoine helps his clients achieve their goal: getting the best solution for their divorce.

A trained mediator as well as a collaborative divorce practitioner, Antoine is also an experienced litigator, so should an out of court settlement fail, he will represent you in court.

Antoine is a member of the Association of Family lawyers and Divorce Mediators (vFas) and  the Association of Collaborative Divorce (VvCP).

Internationals filing for divorce in the Netherlands

Internationals filing for divorce in the Netherlands are often stunned by the far-reaching financial consequences of Dutch marital property law, more specifically the Dutch ‘regime of community of assets and property’. 

In the Netherlands, for marriages with an international dimension (entered into after 1 September 1922), there are strict regulations on whether the marriage in question is subject to Dutch marital property law or to the corresponding law of another country. The following example will illustrate the importance of being aware of this.

Example

A British couple, married in 1994, moves to the Netherlands in 1998 and lives there ever since. Which matrimonial property law is applicable during which period?

Well, strange as it may seem, English law applies for the first 14 years of their marriage (1994 until 2008). After 2008, having lived in the Netherlands for 10 years, the Dutch rule of ‘community of property’ applies to the marital property. This means that, in the unfortunate event of a divorce in 2010, all property and debts acquired after 2008 need to be divided amongst the spouses.

The financial consequences are far-reaching. They would have been completely different if the couple had gotten divorced prior to 2008 or the marriage had taken place before 1 September 1992. 

What can you do to avoid this?

You can avoid the rule of ‘community of property’ by concluding a prenuptial agreement with your spouse. In the contract, you need to designate which country’s law should apply to your marital property. If Dutch law is applicable, concluding a pre- or post-nuptial agreement prevents your assets from becoming community property. On the termination of your marriage by divorce, the debts and assets are divided according to the terms of the contract.

Dutch nationals living abroad

Furthermore, Dutch nationals living abroad often assume that the Dutch ‘community of property’ rule is applicable to their marital wealth if they were married in the Netherlands and did not sign a prenuptial agreement. This, however, is often not the case and can make things messy and complicated. A Dutch couple married under Dutch law but filing for divorce in a foreign country might find that the international private law of the host country overrules the provisions of Dutch family law. This is most often to the detriment of the parties.

Conclusion

Thus, whether you are an international living in the Netherlands, or a Dutch national living abroad filing for divorce, be aware of the differing regulations concerning marital property. This can save you from unpleasant surprises and unnecessary complications.

Should you have any further questions regarding your marital property, please do not hesitate to contact us.

 

Marjet Groenleer - Expat lawyer (family law)

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.

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. 

The holiday season is upon us, with the summer months bringing the most popular time for travel. If you are an international parent travelling with your child(ren), here is what you should know.

Written permission for holidays abroad

In the Netherlands, a parent travelling with their child must have permission from the other parent to take their child abroad. If the other parent has legal, parental obligations, then you must first obtain their written permission to leave the country.

To obtain permission, you need to fill out a content letter from the Centrum Internationale Kinderontvoering (the International Centre for Child Abduction). The letter asks for the name(s) and age(s) of your child(ren), the length of your trip and other information. This letter requires the signature of both you and your (ex) partner (the other parent).

This letter is required regardless of whether or not you are still in a relationship with the parent of your child. We hear from our clients that officials at Schiphol are requesting this letter with increasing frequency before allowing parents to travel with their child.

What to do if the other parent refuses permission for the holiday

If your former partner will not give you permission to travel with your child, you can apply for permission from a court, and these hearings can be scheduled at short notice. The judge will take a number of factors into account, including whether or not the country to which you are travelling is a signatory to The Hague Abduction Convention.

In a recent case with GMW lawyers, an Indonesian parent’s request to travel with her child to a family wedding in Indonesia was rejected on the grounds that the country is not a signatory to the Convention.

Moving abroad with your child

If your child is a resident of the Netherlands, then regardless of their citizenship the rules of The Hague Abduction Convention apply to them. The Convention is an agreement between nearly 100 countries which aims to eliminate child abduction.

Prior to moving abroad with your child(ren), you must obtain permission from the other parent. If you want to move during the process of separation, you can put this in your parenting plan. If you decide to move later, you will need to update your parenting plan.

Before agreeing to the move, th eother parent may request changes to the parenting plan, such as an increase in the number of holidays they are allowed to spend with the child(ren), or other specific requests. One of our Dutch clients, for instance, requested that his children be enrolled in Dutch language courses while residing abroad.

What to do if the other parent refuses permission for the move

If you are unable to get permission from the other parent to move abroad, you can ask permission from the court. The judge will take various criteria into account, the most important of which is what is in the best interests of the child(ren).

Expert help in family law for internationals

Legal Expat Desk provides experts in family law for internationals. We know how complicated and deeply personal custody cases are, and can answer your questions about divorce, parenting plans and more.

Contact our lawyers or submit your question online.

 

This article was published in The Hague Online magazine.

Marjet Groenleer - Expat lawyer (family law)

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.

Maintenance calculation for internationals part 4: allowances & high costs

The third blog within the series on maintenance calculation for internationals listed the allowances which internationals usually receive. Against most allowances, there are high costs associated with the existence of an international. How are these taken into account?

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Maintenance calculation for internationals part 3: partner maintenance

The previous two blogs on maintenance calculation for internationals focused on the costs of the children (blog 1 and blog 2). This third post in the series focuses on partner maintenance (alimony), which is determined by the available means in the marriage.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

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?

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

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.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

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.

 

Marjet Groenleer - Expat lawyer (family law)

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.

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. 

Practice

In practice it often occurs that several years after the divorce – or even during the divorce proceedings – the main caretaker meets a new partner who lives elsewhere in the country or even abroad. Other times the divorced individual is an international, whether or not temporarily residing in the Netherlands (as an expat for example), and may wish to return to his or her home country.

There are many reasons for relocation or emigration. This raises the question whether the main caretaker has permission to relocate with the child to a different city or country against the will of the remaining parent.

Permission

The answer to this question is negative. If the remaining parent has parental responsibility, he or she must give permission. If the remaining parent does not give permission, the other parent can apply to the district court for replacement permission. The court must then weigh in on the opposing interests with the interest of the child playing an important role but other interests also being relevant.

Balancing of interests

Factors which could play a role in the context of such a balancing of interests are the age of the child, his or her social life, the specific needs of the child, the quality and intensity of the contact between the child and the remaining parent, the guarantees for proper contact between the remaining parent and the child after a relocation, the necessity of the relocation etc. If an ‘expat family’ arrived in the Netherlands with the objective of a temporary stay in the Netherlands, a relocation is considered differently than if it concerns a case without international aspects.

There are numerous factors which play a role in the question whether the district court will grant the main caretaker replacement permission to relocate with his or her child. It remains customised work.

More information

If the above issue is relevant in your life and you would like more information, please do not hesitate to contact us.

Update article: December 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

Proof of cohabitation and the duty to pay maintenance: it remains difficult!

It remains a frustrating situation when you are almost positive that your ex-partner is cohabiting but cannot actually prove it. Then you must continue to pay maintenance (alimony). Anyone can imagine that this frustration is hard to swallow. The duty to pay maintenance ends when the ex-partner (having been married) lives together with another person as if they are married. Nearly everybody envisions an emotional relationship where the ex lives with another person who he/she has an emotional relationship with. 

Ruling

Legally, however, having an emotional relationship and living together, or being together often, is not really important. A recent ruling of the Court of Appeal Arnhem-Leewarden of February 2016, makes this clear once again. What is the issue in the specific case?

The ex-wife is in an emotional relationship. The ex-husband believes that his ex-wife is living together with her partner. Therefore, he argues, his duty to pay maintenance has ended. To support his argument and to prove that the ex-wife is cohabiting, the ex-husband had an investigation bureau prepare a report based on their observations of the cohabitation. In other words, they set up a report based on the fact that the ex-wife and her new boyfriend are in an emotional relationship and often spend the night together. A report on cohabitation can be helpful but is definitely not a simple solution and certainly not cheap.

In this recent case, the ex-wife’s new boyfriend also had separate accommodation. Once again the court made it very clear that for cohabitation (as referred to in section 1:160 Dutch Civil Code) to exist, the court needs to establish that there exists mutual care and a shared household on a long-term basis. The partners must therefore provide in each other’s care. This is very hard to prove and the fact that the new partners spend the night together, go shopping together or go on holiday together is not proof. The request of the ex-husband to end maintenance payments was rejected as it was not proven that there was a contribution to the costs of running a joint household.

Conclusion

This is a frustrating ruling for the ex-husband. All the more so if you realise that the ex-wife does actually live with the new partner but is aware of the requirements in case law.

Please do not hesitate to contact us with any questions.

 

Update article: December 2017. 

 

Susan Meijler - Expat lawyer (family law)

Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.

Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.

Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.

No residual jurisdiction under Brussels II for divorcing Dutch nationals

The Brussels Regulation, generally known as Brussels II bis, was originally introduced in March 2000. One laudable intention was to provide the same jurisdictional basis for divorce and similar marital proceedings across the whole of the EU, comprising more than 500 million citizens. The Dutch Parliament, however, has not embraced the jurisdictional ground of additional, national jurisdiction. Thereby, it provides inadequate access to justice and to divorce proceedings for Dutch nationals. For observers outside the Netherlands, this state of affairs seems quite astonishing. 

Jurisdiction across the EU

The Brussels Regulation provides specific jurisdiction for divorce, separation and related status proceedings to be the same across the entire EU. Fundamentally, jurisdiction can only be found under Article 3 (with minor ancillary grounds in Articles 4 and 5) with seven grounds for jurisdiction.

However, there may be circumstances in which no EU member state has jurisdiction in accordance with Article 3. Brussels II therefore makes provision for what is known as “residual jurisdiction”. Where no EU member state has jurisdiction under Art 3 – 5, each member state may provide its own laws for additional jurisdiction.

In the UK and the Republic of Ireland this is sole domicile. Across the remainder of the EU member states it is believed to be sole nationality. But not in the Netherlands. The Dutch Parliament simply endorsed the jurisdiction in Brussels II Arts 3 – 5 but did not introduce any additional, residual jurisdiction. This produces real hardship for some Dutch nationals.

Examples

Let us take a look at various examples of cases in order to illustrate the above:

An English wife and Canadian husband live in Cambodia for the husband’s work. Neither want to get a divorce through the family court system of Cambodia. The English woman is able to file for divorce in England on the basis of her sole domicile. Even though she resides in Cambodia, the official address where she is registered lies in England. It will be a matter for common law discretion whether England or Canada has the closer connection. But the wife has the opportunity to file for divorce in England. The sole domicile residual jurisdiction basis arises because neither England nor any other EU member state has jurisdiction under Arts 3 – 5 in this specific case.

In similar circumstances a French wife with a Canadian husband living in Cambodia can file for divorce before the French courts on the basis of her French nationality – the residual jurisdictional basis of France.

No residual jurisdiction under Dutch law

In identical circumstances, however, a Dutch wife married to a Canadian man living in Cambodia cannot file for divorce in the Netherlands even though she is a Dutch national. This is not possible because Dutch law not introduced the residual jurisdiction.

This causes continuous difficulties for Dutch specialised family lawyers consulted by Dutch nationals living outside the EU who seek a divorce through the courts of their home country. The courts will not allow divorce because there is no basis for the residual jurisdiction under Dutch law. Even if both spouses agree to Dutch jurisdiction, the Dutch courts cannot accept international competence because this is not (yet) possible.

There have been countless cases where this has caused much frustration and anguish for Dutch nationals (not married with another Dutch national) living and working abroad. This was especially the case when they were aware that other EU nationals can use the family courts of their home country on the basis of sole nationality or sole domicile, as applicable.

Call for change

Of course this needs to change. The lack of residual jurisdiction creates hardship and prejudice to the citizens of one EU member state. For the sake of Dutch citizens living outside the EU and for the sake of an autonomous justice system across the EU, we urgently call on the Dutch Parliament to introduce the provision for residual jurisdiction for divorce under the Brussels Regulation.

Contact

If you have any questions or would like further information, please do not hesitate to contact us.

 

Written by David Hodson OBE and Marjet van Yperen. 

David Hodson OBE is an English solicitor, mediator, arbitrator, and Australian qualified solicitor and barrister. He is also part time deputy family court judge in London (DDJ at the CFC).  He is a co-founding partner of The International Family Law Group LLP, a specialist practice in Covent Garden, London, (www.iflg.uk.com) serving the interests of international families and their children.  David Hodson OBE is editor and a primary author of The International Family Law Practice (Jordans), England’s leading textbook on international family law.  He is also visiting Professor at the University of Law. 

Marjet van Yperen-Groenleer is an associate partner at GMW advocaten (www.gmw.nl) in The Hague. She has been active in family law for 15 years. Her focus is on (international) divorces, in particular the financial aspects. She is a member of the Association of Family Lawyers and Divorce Mediators (vFAS). Marjet van Yperen-Groenleer is also lecturer in international private law at Leiden University.  She assists many expats with their divorce. This refers to both non-Dutch residents in The Netherlands as well as to Dutch nationals living abroad. Marjet specializes in finalizing financially complex matters with different jurisdictions. 

 

 

Update article: December 2017.

Marjet Groenleer - Expat lawyer (family law)

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.

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.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Developments in international marital property law

In which country can international couples apply for divorce and which law applies? When filing for divorce, couples are often confronted with surprises, especially when it comes to the division of property. Internationals filing for divorce in the Netherlands come to deal with a unique regulation: ‘the general community property regime’. According to their ‘own’ law, an entirely different regime applies for marital property. Also, Dutch nationals living abroad often have no idea of the regulations on marital property there.

Competent court

Varying national legislation causes for uncertainty among divorcing couples. On 16 March 2015, The European Commission submitted a legislative proposal aiming to clarify to which court international couples can bring their dispute.

In this legislative proposal, divorcing couples can choose the divorce court judge – the judge to whom they bring the divorce proceedings  –  to also have competence over the division of property, such as the settlement of a pre- or postnuptial agreement. Couples also have another option: instead of staying with the court (judge) that handled their divorce proceedings, the divorcing couple can choose the court of the country whose law they have declared applicable to their marital property regime.

What happens if the spouses do not manage to reach a decision together? In that case, the court uses a number of objective criteria, such as the spouses’ (most recent) permanent address, in order to decide on the country with which the spouses have the closest ties. This may be the country of the court which handled the divorce proceedings or a different country.

Applicable law

The parties may make a choice of law for a particular legal system – that is, within certain boundaries. If they are not able to come to a decision, the court again makes use of objective starting points to decide with which country the spouses have the closest ties, such as the habitual residence of the spouses as well as their nationality.

The coming into force of this proposal represents a rigorous step. Particularly as far as the applicable law is concerned, because this would mean that the Hague Matrimonial Property Convention (1978) no longer applies in European cases. A decision on this proposal will be made in January 2019.

Contact

Should you have any questions regarding the legal aspects of your divorce, please do not hesitate to contact us.

 

Update article: November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

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.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Benefits of talking to a divorce specialist

Friday 12 September 2014 is the Day of Divorce in the Netherlands, organised by the Association of Family Lawyers and Divorce Mediators (vFAS). Susan Meijler from GMW lawyers in The Hague explains how people can benefit from a free informal talk with a divorce specialist.

What is aim of the national Day of Divorce?
The Day of Divorce is intended to lower the threshold for getting advice about divorce or other family law issues. For those who are thinking about ending a relationship, approaching a lawyer is usually a major step. Often it feels wrong to use the word ‘divorce’ if you have not yet made a decision. To avoid problems at a later stage, we inform people on this day about possible consequences. This can be done completely anonymously.

Is the Day of Divorce only for people who are thinking about divorce?
GMW lawyers’ doors are open for anyone involved in divorce. All kinds of practical issues can arise during the proceedings, the settlement or even years after the divorce has been settled.

For which problems can you offer help?
At the moment, this often involves allocating the marital home with residual debts. We also usually find a good solution for child visitation arrangements, for instance, by discussing a parenting plan. Years after the divorce, questions may arise concerning access, authority, maintenance or forgotten pension arrangements. We often help business people to calculate their income and the pre- and postnuptial agreements.

What can people expect from these talks?
First of all we listen. After all, divorces are emotional. Our task is to then keep an eye on the business side of things. Our explanation focuses mainly on the consequences of various decisions, based on concrete facts. More is required for in-depth advice.

Is it possible to come for an informal talk at another time?
You can always make an appointment with GMW lawyers. This is also possible after working hours. Since it involves personal issues, it is very important to feel comfortable with your lawyer. After all, it’s about building trust and a long-term collaboration. For this reason, it is important to orientate. We want to give people the opportunity for this during an informal meeting.

Contact

If you have any questions or need advice, please do not hesitate to contact us.

 

Update article: December 2017. 

 

Susan Meijler - Expat lawyer (family law)

Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.

Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.

Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.

Maintenance payments by entrepreneurs: why we’re getting it wrong

When a married couple gets a divorce, in most cases one of the spouses ends up paying the ex-spouse maintenance. Individuals who are entrepreneurs often end up paying their ex-spouse the wrong amount of maintenance. This is due to cash flows being disregarded or not given sufficient consideration. So how SHOULD the courts calculate maintenance?

The entrepreneur’s financial means

You might think it is straightforward to ascertain an entrepreneur’s financial means: it is simply a matter of looking at his income and the company’s profits. But this is incorrect. An entrepreneur’s financial statements are merely a snapshot of his financial situation in a particular period. The court cannot solely determine how much maintenance an entrepreneur is able to pay in the event of a divorce on the basis of the financial statements.

Profits during the three years prior to divorce

One of the basic principles (established in 1994) for calculating a company’s profits is that one needs to use business profits when determining financial means. This is still misinterpreted in legal practice. The recommendation was that lawyers and judges needed access to financial statements from the last three years of a company in order to determine the company’s profits.

In practice, this recommendation has taken on a life of its own, with the result that courts take the average profit for the last three as the baseline. This is what judges still ask for when determining an entrepreneur’s maintenance obligations. In practical terms, this means there is far too little consideration of whether the entrepreneur can actually afford the maintenance payments. Even if the average profit is pretty good, there may not be any money available to pay maintenance. When determining maintenance in an entrepreneur’s divorce, as well as past profits, the annual cash flow in recent years and the expected cash flow must also be determined.

Determining cash flow

In order to determine how much maintenance an entrepreneur can afford to pay, in addition to the company’s profits, ideally the court should draw up an overview of cash flows from operating activities, investment activities and financing activities. This should quantify current and projected cash flows at the time of calculation, clearly indicating how much money is available for maintenance payments without relying solely on past accounting profit or taxable profit.

Analysing cash flow

There is a lot of effort involved in producing cash flow statements, but alone such statements are not enough. The court will have to analyse cash flows so that cost items which do not actually produce a cash flow can be corrected. In other words, the cash flows have to be “normalised”.

Capital expenditure and repayments around the time of the divorce

An entrepreneur may have elected to make certain investments and/or repayments which will affect cash flow. Investing too much around the time of the divorce, raising too little finance for those investments and/or repaying too much on loans when there is no need to do so from a business perspective: these are all scenarios which may call for a correction of cash flows.

It is also important to know how much money the ‘Director and Majority Shareholder’ has taken out of the business, how much he owes the business and how things will look in the future. In addition to investments and director’s drawings from the business, contributions to a self-managed pension fund are another factor to consider when correcting cash flows. The same goes for depreciation.

Why? Well, what if profits are good but the ‘Director and Majority Shareholder’ owes the business a lot of money? In the cash flow system, a debt on current account is an outgoing cash flow. No money will come into the business, yet money will leave the business because the company has to pay the entrepreneur a dividend.

Forecast for the post-divorce period

The final piece in the puzzle is a forecast for the next few years. The importance of forecasts is greatly underestimated, yet they are a major factor in determining what an entrepreneur can afford.

Conclusion

To conclude, when determining maintenance an entrepreneur can afford, the court must look at several things. First of all, the court must observe the financial statements over the last three years. Next to that, it is essential to prepare the most detailed cash flow statement possible, complete with a forecast. Only then can the court form an accurate picture of the means – or potential means – at the entrepreneur’s disposal. Past book profits are no help at all here; the court needs to determine the (free) cash flow.

And remember that maintenance payments must never be more than the amount the free cash flow allows. This would jeopardise the company’s very future – which is certainly not in the interests of either party in a divorce.

We understand that the topic of maintenance can be difficult.

Please do not to hesitate to contact us should you have any questions or if you need advice sorting out your maintenance arrangements.

 

Update article: December 2017

Antoine De Werd - Expat lawyer (family law)

Antoine de Werd is a partner and head of the family law section at GMW lawyers. He studied Business Law at the University of Leiden and was admitted to the The Hague Supreme Court Bar in 1989. Immediately after, he started GMW lawyers as one of the founders.

Throughout his career, Antoine has concentrated on resolving financial disputes involving high net worth individuals and families. He is one of the few male specialised divorce lawyers in the Netherlands and has substantial legal experience in (international) divorces, especially those involving companies, complex maintenance claims, division of assets/property, retirement benefits and set-off clauses.

Antoine understands that divorce and separation are difficult times. Rather than focusing on the current painful situation, Antoine helps his clients achieve their goal: getting the best solution for their divorce.

A trained mediator as well as a collaborative divorce practitioner, Antoine is also an experienced litigator, so should an out of court settlement fail, he will represent you in court.

Antoine is a member of the Association of Family lawyers and Divorce Mediators (vFas) and  the Association of Collaborative Divorce (VvCP).

Information Day Family Law & Inheritance Law 2014

  • Did your divorce turn out more difficult than foreseen?
  • Do you wish to re-evaluate the alimony arrangement?
  • Are there issues to be solved in the visitation schedule? 
  • Having some trouble in organising the inheritance?
  • Do you encounter difficulties in dividing the matrimonial home?  

Modern families are becoming more and more complex. Many people have legal questions about their rights and obligations in personal issues. Normally one does not consult a lawyer very easily.

GMW lawyers wants to drop the barrier and enable people to ask these and other questions. Our doors are open at 9.00 o’clock on Thursday June 12, 2014.

GMW AdvocatenOur lawyers from the department Family Law & Inheritance Law will be ready for you on June 12th. During half an hour we will look into your questions, hopefully finding a personal solution.

Make an appointment without any obligations through info@gmw.nl or 070 3615048.

Date: Thursday June 12th 2014
Location: Scheveningseweg 52, 2517 KW Den Haag
Time: 09:00 – 17:00

Legal Expat Desk is an information hub that provides the expat community in The Netherlands with information about Dutch law and advice from legal experts. As an independent advisory service, we are able to offer multiple perspectives that help you to strengthen your legal position.

Divorce in the Netherlands and ties with Scotland

In recent years, family lawyers at GMW lawyers have often dealt with Scottish divorce law, as their clients have Scottish nationality, got married in Scotland, and came to the Netherlands for work.

Read more

Susan Meijler - Expat lawyer (family law)

Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.

Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.

Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.

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.

 

Marjet Groenleer - Expat lawyer (family law)

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.

When does Dutch law apply to divorce (part 1)?

If you have moved to the Netherlands, you may be in for some surprises when filing for divorce. For instance, it may turn out that you are married in community of property. Couples often are not aware of this until one of them files for divorce.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Website marital property law in the European Union

When it comes to the settlement of marital property, in the case of divorce, death, inheritance and gifts, it is not uncommon for foreign law to apply.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Spousal alimony: when the receiving ex moves in with a new partner

Many of those paying their ex-spouse maintenance (alimony) hope their obligation to do so will stop, once their ex moves in with a new partner. However, things are not as simple as that.

Alimony

The duty to pay spousal alimony (normally an average duration of 12 years) ends:

  •  when the receiving ex-spouse re-marries;
  •  should the receiving ex-spouse live with a new partner, under the covenant of a registered partnership;
  •  in the case of the receiving ex-spouse living with a new partner, as if they were married or as if they had signed a registered partnership. Crucial is that the ex-spouse admits to be living with a new partner. However, things can get messy here. For example, the new relationship can be denied by the receiving ex-spouse for the sake of ongoing alimony payments. Thus, it is essential that ex-spouses-to-be make sound agreements on the circumstances that may prematurely end spousal alimony payments. Doing so will not only prevent potential conflict-material, but it can actually bring advantages to both parties.

Score a win – win

A possible agreement between divorcing spouses could be that alimony payments go on for 6 months after the receiving spouse has moved in with his or her new partner. The advantage to the receiving ex-spouse is that he or she could give the new relationship a try, without the looming doom of losing partner alimony. The advantage to the paying ex-spouse is that things have a better chance to work out well, since his or her ex can start a new relationship without the risk of nearing financial loss.

Avoiding the subject: prepare for pain

If no previous agreements were made, things can get really messy. The receiving ex-spouse may deny to be living in a new relationship, leaving the burden of proof on the paying ex-spouse. The lawmaker’s wording of ‘living together as if they were married’ is not obvious to interpret. For a judge to rule in favour of the paying ex-spouse wanting to end his or her alimony obligations, all of the following must apply. The receiving ex-spouse must have:

1) a long term relationship with the new partner, 2) based on affective attachment, 3) leading to the partners to care and provide for each other’s needs on a regular basis, 4) whilst living together, 5) within a joint household.

Now, how do you credibly  prove all of the above?!

Hiring a private eye?

Some paying ex-spouses consider hiring a detective. The detective could find evidence of circumstances leading to a termination of their payment obligations. However, it is rather difficult to prove anything beyond the fact that the two scrutinized parties have a relationship and do ‘fun things’ together. Especially ‘caring and providing for each other on a regular basis, within the joint household ‘ is a provision difficult to prove. Also, a detective can’t really much about the durability of an affective relationship unfolding between the parties under observation.

Some advice

Making sound agreements is definitely the better option. As always, it saves time, money and energy. It also preserves one’s sense of dignity and keeps one in charge, whatever the future may bring.

Contact us for help with questions about maintenance.

 

This article was updated November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

Comparative law study: spousal maintenance part 1

In the English magazine ‘Family Law Journal’ (September 2012 no. 119), lawyers from various states compare and contrast the approach to spousal maintenance (alimony). These were Julian Bremner from Rayden Solicitors, England, Kate Mooney from Derwent &Tamar Chambers, Tasmania, and Marjet van Yperen-Groenleer  from GMW lawyers (Legal Expat Desk), the Netherlands. Together, these lawyers compare the legal systems of England and Wales, the Netherlands and Australia.

There are major differences and the financial implications can be quite substantial. Therefore, for expats living in the Netherlands considering to file for divorce, it is advisable to first examine in which country they should do so. This could be either their home country or the Netherlands.

England, Wales and the Netherlands 

In this first analysis, the focus lies on the differences and similarities between England, Wales and the Netherlands. Click on the link for the analysis: comparative law study spousal maintenance. 

Also, LED lawyer Marjet Groenleer has previously blogged about this subject in ‘International divorce: in which country should proceedings be conducted?’.

 

Update of this article: November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

Tax aspects in international divorce

It is important for one to be familiar with the tax aspects of an international divorce when filing for divorce. Thus, it is advisable to seek tax advice during (international) divorce proceedings.

Tax aspects in a national scenario

In (plain) national situations, for the payer, spousal maintenance is tax-deductible, meaning that it is deducted from his or her taxes. On the other hand, the recipient is taxed on the basis of a progressive tax rate (meaning the tax rate dependent on his or her income level). For child maintenance other rules apply. Child alimony is not tax-deductible for the payer, but also not taxed for the recipient.

The spouses could agree on a lump-sum payment of the spousal maintenance, meaning a single payment as opposed to a series of payments. The recipient is taxed on the lump-sum at once, based on the progressive tax rate. For the payer, the lump sum is only tax-deductable when the amount of the lump sum is paid to the ex-spouse. This means that the lump sum must be paid at the moment the divorce is registered. The disadvantage of the progressive taxation can be cushioned by filing a petition for the so-called “middeling” (averaging).

It is also possible to come to a buy-out agreement of the spousal maintenance by allocating possessions in the year of the divorce. The transfer of possessions and the petition for divorce must take place in the same calendar year. If there is a tax advantage on these possessions, it is possible for the payer to use the tax deduction.

Tax aspects in an international scenario

In many foreign countries, spousal maintenance is not or barely deductable. Suppose a maintenance debtor gets employed in a foreign country, for example an expat. In general, he will be qualified as a non-resident taxpayer. This means that he is only taxable in the Netherlands as far as he has Dutch income. Dutch income is formed by income from working and living in the Netherlands, and income from savings and investments in the Netherlands.

If the non-resident taxpayer keeps his house in the Netherlands (leased or not), this house will be taxed. If he is obliged to pay spousal maintenance, this maintenance is not deductible from his Dutch income. This tax-deductible item is explicitly excluded in Dutch tax law. If his former wife lives in the Netherlands, the spousal maintenance she receives is taxable for her. In this situation spousal maintenance is taxable, but not deductible!

In this specific case there is a possibility too, if things are well structured, to realise a net lump sum. During the year of the divorce, the non-resident taxpayer opts for resident taxpayer status. This choice automatically applies to his former wife. In the tax return for the year of the divorce, the tax deductible item will be allocated to the recipient, with the result that recipient receives the lump sum net.

Advice

Good tax planning can limit and often prevent tax disadvantages. Agreement on the tax return for the year of the divorce is a must!

 

This article was updated November 2017.

Marjet Groenleer - Expat lawyer (family law)

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.

Pension given low priority in international divorce cases

In almost all divorce cases, the division of retirement pension is one of the last things married couples think about, particularly in the case of international divorces where the spouses’ priorities lie elsewhere. “Can I move home? What will the consequences be? Will I lose my residence permit after the divorce is final?” Such matters primarily occupy the minds of divorcing partners. Nonetheless, the issue of pension rights will also have to be involved in any divorce settlement.

Dutch law applicable

Dutch law is applicable to the division of the retirement pension if Dutch law governs the marital relations. Then the Equalization of Pension Rights Act (Wet Verevening Pensioenrechten) applies. This means that each former spouse has the right to half the retirement pension accrued by the other partner during the marriage. Dutch pension schemes acknowledge the existence of a direct claim against the insurer. Once a former spouse retires, the insurer makes a payment each month to the other partner.

Foreign law applicable

If foreign law is applicable to the property relations between the former spouses, the Dutch Equalization of Pension Rights Act is nonetheless applicable where a Dutch pension scheme exists. In the case of a foreign pension scheme, it will be necessary to assess in accordance with the applicable foreign law whether the former spouses are entitled to each other’s retirement pension, and if so, in what manner.

Several foreign pension schemes have specific individual provisions relating to the retirement pension as well as the surviving dependant’s pension (the pension of the surviving spouse after his/her spouse’s death). This can lead to complications.

Advice

To conclude, retirement pension is given low priority in (international) divorce cases, and is often something that is overlooked. It is advisable  to look into this on time to avoid further complications.

Contact us for advice on your divorce and pension.

 

This article was updated November 2017.

Marjet Groenleer - Expat lawyer (family law)

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.

International divorce: cross-border legal cooperation

GMW lawyers and the Legal Expat Desk serve clients across the globe. Cross-border cooperation in the practice of law is reflected in the growing number of divorce cases with an international dimension. GMW lawyers represents expats who, for example, want to arrange their divorce in the Netherlands, or who are forced to do so by their spouse.

Dutch citizens abroad

GMW lawyers also regularly represent Dutch citizens who are in the midst of divorce proceedings in another country. Sometimes the proceedings take place in the Netherlands as well as abroad. This can happen when a Dutch court does not have jurisdiction in respect of all aspects of the proceedings. To illustrate this:

A married Dutch couple living in France with their children can file for divorce in the Netherlands. However, a Dutch court does not have jurisdiction to make provisions for the children (with regard to e.g. access or visitation rights). If the parties are unable to reach agreement amongst themselves concerning the children, they will have to take action in France.

In the interest of coherence (for the broader context of the divorce), it may be advisable to maintain good contact with the other lawyer, in this case in France. We advise and consult one another. This cooperation is not only interesting and instructive, but also extremely valuable to the client.

We advise Dutch nationals who divorce abroad (under certain circumstances) to consult a Dutch lawyer. This way, they can also get an insight in the question of whether Dutch law recognizes foreign rulings or judgments.

Foreign lawyers

It also works the other way around, with GMW lawyers writing legal opinions for lawyers abroad. During divorce proceedings conducted abroad, certain aspects of the divorce could be subjected to Dutch law. The regulations of private international law of each country determine which law is applicable to the various aspects of the divorce.

It occurs frequently that foreign lawyers have to deal with a divorce property settlement in accordance with Dutch law. The general community of property, for example, is one facet of the Dutch legal system that is unique in the world. Therefore, we frequently need to explain this to a foreign audience.

Do you need help with an international divorce? Contact us – we’ll be glad to assist you.

This article was updated November 2017. 

 

Marjet Groenleer - Expat lawyer (family law)

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.

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. 

Dutch nationals living abroad

In the case of Dutch nationals living abroad, the Dutch court may grant the divorce when both spouses have Dutch nationality or if one of the spouses has dual nationality. In divorce proceedings, the Dutch court is competent to rule on issues such as alimony and child support. The court can also decide upon the division of joint assets or can enforce a prenuptial agreement.

However, the Dutch court may not make decisions concerning children. These concern the establishment of contact arrangements, assigning the children’s primary residence, allocating parental authority, etc. This is, assuming that the children of the Dutch couple do not live in the Netherlands either. Solely the court of the country in which the children live is competent to decide on such issues, even when the child(ren) has Dutch nationality.

Thus, solely the financial aspects of the divorce can be settled in the Netherlands. Which law will be applied by the Dutch court is another question. This depends on the facts and circumstances of the individual case. This subject is too extensive to expand on here.

Recognition and enforcement of a Dutch divorce abroad

Is a divorce that is granted in the Netherlands always recognised in the former spouses’ country of residence? This depends on the country’s legislation. Member states of the European Union have agreed to recognise each other’s divorces. In these countries, there will be no problems with recognition of the divorce and other agreed issues.

For countries with which there are no such agreements, the internal law of the state determines whether the decision of the Dutch court is recognised, and if so, under what conditions. For its enforcement, the same applies as for recognition. It would therefore be advisable for a Dutch couple to first figure out whether and to what extent their country of residence recognises Dutch divorce before embarking on divorce proceedings in the Netherlands.

Contact

Are you a Dutch national living abroad with children? Do you have questions regarding divorce proceedings and the competency of the Dutch court? Or do you have any other related questions? Please do not hesitate to contact us.

 

This article was updated November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

International divorce: in which country should proceedings be conducted?

Marriages can have an international dimension, due to e.g. nationality or place of residence. The question then arises where divorce proceedings should be conducted.

Jurisdiction of Dutch courts

Divorce law varies from one country to the next. It is recommended to seek advice in advance before filing for divorce in another country. The basic principle is: first come first serve. This means that the first court where divorce was filed has the upper hand. The second court where divorce was filed has to wait with the proceedings until the first court has made a decision.

Two spouses with Dutch nationality always have the possibility of bringing divorce proceedings to the Netherlands, without actually being residents here. Dutch courts also have jurisdiction if the spouses live in the Netherlands, regardless of their nationality or if the defending spouse is resident in this country.

In addition, there are several other rules on jurisdiction for courts in the Netherlands. Matters get complicated when children are involved. In principle, only a court in the country where the children live is competent to make provisions with regard to the children. It is a jumble of rules. Sound advice on the application of these rules in your specific case is necessary.

Applicable law

Things can become even more complicated. This is especially the case when it needs to be determined which law is applicable to the different matters that need to be arranged in any divorce.

If a court in the Netherlands has jurisdiction then it does not automatically follow that Dutch law is also applicable. This depends on all sorts of rules pertaining to private international law and various European regulations and international treaties. This could lead to all sorts of problems for expats in particular.

If you need help with international divorce, please contact us.

This article was updated November 2017. 

Marjet Groenleer - Expat lawyer (family law)

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.

More recent developments in international family law

It seems like there is no end to the continual stream of changes in national and international family law, particularly developments in international divorce. In one such development, the Community of Property Act came into force on 1 January 2012.

Central Authority loses monopoly position

In addition, with this act the Central Authority lost its monopoly position in child abduction cases. The new child maintenance regulations and the new Child Protection Convention came into force for ‘new’ disputes a short while ago (Changes in international family law).

Granting of divorce on basis of Dutch law 

The most significant change is the implementation of Book 10 Art 56 of the Dutch Civil Code. This article states that if a couple files for divorce in the Netherlands, the question of granting divorce depends on Dutch law. This is, unless the parties have agreed otherwise.

In the past, a so-called three-stage rocket was in force. The parties’ nationality and habitual residence were major factors in determining the applicable law. From now on, however, Dutch law will apply to divorce petitions. This is, even when the spouses hold different nationalities.

Other considerations to keep in mind

Apart from a few minor changes, the regulations on family law will basically remain the same. These regulations have been incorporated into one single legal code instead of forming a tangle of different minor laws.

However, the main consideration is that EU regulations and international treaties will continue to have priority over the Dutch Civil Code. If an issue is provided for in a regulation or treaty, Book 10 of the Civil Code will not apply.

Do you need advice on the current divorce laws in the Netherlands and what they mean to you? Please contact us – we’ll be glad to help.

 

Marjet Groenleer - Expat lawyer (family law)

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.

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:

1. Abolition of legal representative competence of the Central Authority 

On January 18, 2011 the Dutch Parliament adopted the following legislative proposal: abolition of the legal representative competence of the Central Authority (CA) in matters of international child abduction and child protection. At present, this proposal is waiting for approval by the Dutch Senate.

When a parent brings a child from abroad into the Netherlands who is in breach of the custodial ruling concerning that child, this qualifies as child abduction. In such cases, the Central Authority (CA) would assist the other parent in facilitating the return of the child; if necessary in court as well.

The new legislative proposal aims to abolish the competence of the CA to legally represent the other parent. Therefore, he or she will need to be the assisted by an attorney in order to act. Once this legislative proposal takes effect, the CA will lose its monopoly position.

2. The Hague Child Protection Convention 1996

The Hague Child Protection Convention 1996 was taken effect on May 1, 2011 in the Netherlands, replacing the Hague Child Protection Convention 1961.

The Convention starts from the premise that the country of the child’s habitual residence has jurisdiction to take measures to protect the child. Protection measures include custody, visitation, habitual residence, co-parenting, etc. Rather than taking into account the nationality of the child and the parents, the judge will apply the law of the country of the child’s habitual residence.

3. Child Maintenance Regulation

The Child Maintenance Regulation has taken effect on 18 June 2011, allowing for the recognition and enforcement of child maintenance provisions in all EU member states. Thus, in most cases, a ruling concerning child maintenance obligations can be enforced without much further ado in another EU member state.

The Regulation also spells out the competent judge and the applicable law, in cases of cross-border child maintenance obligation disputes. The Regulation replaces, in the EU context, all national and international legislations that were previously applicable. However, the recognition and enforcement of child maintenance obligations can still be a complex and tricky procedure.

 

If you need advice or further information about Child Maintenance, please contact us.

 

Marjet Groenleer - Expat lawyer (family law)

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.

Marital community of property Part 3 – Compensation rights

As of 1 January 2012, a legislative proposal with new provisions on the general community of property will take effect. (See Part 1 and Part 2  of this series.) This article will elaborate on the ways which couples filing for divorce will be affected under the new provisions concerning compensation rights.

Compensation rights

A spouse can make a claim for compensation whenever he/she invests his/her ‘own’ money in a jointly owned asset. Couples married under the matrimonial regime of community of goods and property may still have access to e.g. their inheritances or gifts, under the condition that these are covered by an exemption clause.

Let us take, for example, a couple that marries under the regime of community of property. The husband inherited € 50,000 under an exemption clause and invests it in the renovation of the matrimonial home. This house, however, falls under the community of property and goods. Should the couple decide to file for divorce, the husband could claim for compensation, since he has invested his ‘own’ money to raise the value of the matrimonial home. Therefore, he is entitled to € 50.000.

The current situation

Under the current legislation, the husband has a nominal right to claim the € 50,000 invested in the matrimonial home. Increased or decreased value of the house is not taken into account.

The future situation

After 1 January 2012, things will change insofar as the husband will be able to claim the invested sum, plus the increased value or minus the decreased value that occurred due to his investment.  The moment in time, so when one invested the money, is irrelevant.

Do you need advice about your rights under the marital community of property? Contact us – we’ll be glad to help you.

Marjet Groenleer - Expat lawyer (family law)

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.

Divorce and exclusion clauses under Dutch law: inheritances

There is no global consensus as how to best divide the assets of divorcing couples. Thus, there are sharp differences between the divorce laws across countries.

Read more

Marjet Groenleer - Expat lawyer (family law)

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.

Marital community of property – Part 1

This post is part 1 of a series of 3 articles on marital community of property

Marital community of property

Married couples without any prenuptial agreement automatically marry under the so-called regime of general community property. This means the spouses share all property equally, including assets obtained previous to the marriage, as well as inheritances and gifts that are not specifically covered by an exemption clause.

With this legislation, the Netherlands truly stands unique. In Germany, the default system is the so-called “Zugewinngemeinschaft”, in France, it is the ‘Communauté réduite aux acquêts’ – both of which are marital regimes limiting the jointly owned property to that acquired from the moment of marriage.

Slight changes since 2012

On 1 January 2012, a reform of the marital community property took effect. Whilst the content remains unaffected and the regime of general community property maintains its effect, some provisions have changed. These changes mark the end of a long debate within the Dutch marital legal system on the regime of general community property.

Learn more

See part 2 and part 3 of this series to read about these changes and the consequences these have for divorcing spouses.

 

Marjet Groenleer - Expat lawyer (family law)

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.

Marital community of property Part 2 – Reference dates

On 1 January 2012, several provisional changes were made to the marital community of property regime. What does this mean for divorcing couples? In order to shed some light on the practicalities, this article will elaborate on changes made with regards to reference dates.

Reference date

Couples that marry under the marital regime of community of property and goods must divide their property and assests when terminating their marriage. However, it is worth exploring the circumstances under which the reference date is set for the extent of division of the property and goods as well as that of the valuation of the overall assets.

Present situation

At present, the reference date for the extent of division of property and goods is the day the divorce is registered. The reference date for the valuation itself takes place on the day the assets are meant to be divided. In the case of real estate, this is when oboth parties sign the deed with a notary.

However, the present situation has disadvantages. Quite a lot of time can pass between the moment one of the parties moves out of the marital home and the moment of registration of divorce. This means that the spouses have no insight into each other’s dealings and financial manipulations of their joint assets and property until the divorce is final. It often happens that one of the spouses strips significant amounts from the jointly owned account. Other times the value of jointly owned assets rises or falls. The division of assets and property is meant to be the final step in the divorce proceedings. Thus it is unclear what may happen with jointly owned property until the divorce is final, under current legislation.

Future situation

As per 1 January 2012, the reference date for the extent of division of property and goods will be the day (one of) the parties file(s) petition for divorce in court. This means the spouses will no longer be able to manipulate their assets. If, for example, one of the parties makes a debt after the petition of divorce is filed, this debt will no longer fall into the community of assets and property.

The reference date for the valuation has not changed. If the spouses manage to come to an agreement, arranging a different date of reference is still an option; however, it remains difficult to do so.

Learn more

This post is part 2 of a series of 3 articles on marital community of property.

See part 1 and part 3 of this series to read about these changes and the consequences these have for divorcing spouses.

Marjet Groenleer - Expat lawyer (family law)

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.