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Dutch Family Law

In the case of international marriages, the matter of whether Dutch law or that of another country is applicable must first be established.

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The Netherlands has a modern and liberal family law structure, whereby non-traditional relationships are treated in the same way as traditional relationships. However, the matter of whether the partners are officially married or living together unmarried makes a lot of difference.  The law applies certain consequences to the existence of a marriage.  

Negotiated divorce

In the Netherlands you can get divorced by both parties engaging the same lawyer, who acts as a negotiator. Once agreement is reached on all points, the details are set out in a covenant. A short legal procedure which does not require court attendance follows in order to validate the divorce. This method of divorce is substantially cheaper than one in which the parties each have their own lawyer. Negotiation does require that both parties are prepared to take into account the other´s interests.

Contested divorce

If there is no negotiation a party can unilaterally apply for a divorce. The other party can then contest it and make counterclaims. The judge then makes the decisions relating to points of difference. Under Dutch law the breakdown of a marriage is grounds for a divorce and there are no strict requirements in such cases. It is almost impossible to prevent a divorce, even if one party does not want it. The cause of the breakdown of a marriage plays no role in the judge´s decision.

Maintenance

Dutch law applies an initial temporary right to maintenance after a divorce. This does not apply to childless marriages shorter than 5 years. In the Netherlands the grounds for divorce have no bearing on maintenance: the reason the marriage has failed is immaterial. Serious misconduct on the part of the recipient of maintenance can however lead to forfeit of the right to maintenance. This right is also forfeit if the recipient generates sufficient income of their own or lives together with another partner. The judge can also adjust the amount of maintenance paid if the financial situation of the party paying the maintenance changes, for instance if their income is reduced due to the loss of their job.

Child maintenance

In the Netherlands child maintenance is determined according to a set formula based on the cost of the children and the income of the parents.   

Recognition of children

If parents are not married upon the birth of a child then under Dutch law it is not certain who the father is. Judicial recognition, that establishes legal fatherhood, is required, which in turn can only be granted if the mother gives her permission. In most cases this is not a problem, but if the mother refuses permission the father can apply to the court for surrogate consent. Recognition is not the same as authority in the Netherlands.

Authority over children

Under Dutch law both parents have authority over the children after a divorce. This is not automatically the case upon birth in unmarried relationships. Cases relating to parental authority regularly occur. The question of who has authority in international divorces is important when it comes to freedom of movement. Single parent authority is possible if the parents are unable to communicate with each other and there is a risk of the children becoming caught in a tug-of-war between the parents. This is not often the case. In such cases the judge seeks advice from the Dutch council for child protection.

Access and custody

Dutch law requires parents to formulate a parenting plan prior to the divorce procedure. This plan sets out what the parents have agreed relating to custody of the children subsequent to the divorce. If parents cannot come to agreement, the court decides, initially based on the premise of equal custody.  

Disputes over movement of children

As a consequence of divorce, agreements have to be reached relating to custody of the children and frequency of contact with the parent with whom the child does not live. In time the custodian parent, especially if the parents have different nationalities, may wish to move house, either in the Netherlands or to a different country. That depends on the possibilities set out in the custody agreement. The parent wishing to move needs permission from the other parent (in the case of joint custody). We are experienced in matters relating to permission to relocate with children. A judge can weigh up the interests involved and give surrogate consent.

Matrimonial regime

When partners split up, jointly owned property must be divided. In the Netherlands and countries where traditionally Dutch family law applies, such as Indonesia and South-Africa, marriage brings with it joint ownership of property. This means that upon marriage all assets and liabilities merge. Upon divorce this common property and liability must be divided.  However, Dutch residents can also enter into a notarised prenuptial agreement. In that case the prenuptial agreement specifies how the assets and liabilities should be allotted upon divorce.  The Dutch government is changing the law in 2017 so that in future marriages each partner´s property no longer becomes jointly owned, whereas property acquired during the marriage is jointly owned. In the case of international marriages, the matter of whether Dutch law or that of another country is applicable must first be established.

Other issues

The judje can also order special rulings such as a decision about the right to use a family house (property or rental) during the proceedings.   

 

We are specialized in civil litigation in The Netherlands. Read more about the Dutch judiciary…

 


 

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