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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Recognising foreign spousal maintence decisions

What if a court in America or Switzerland or elsewhere has made a ruling on spousal maintenance and you want to invoke it to claim against their assets in the Netherlands?

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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.


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?

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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.

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Maintenance calculation internationals part 2: extra costs for children

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

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Maintenance calculation part 1: children of internationals

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

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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. 


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.


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. 


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.


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

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.


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.


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.

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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.