Divorcing in the Netherlands

1. How can we divorce in the Netherlands and where?

Three possibilities exist:
– divorce; the marriage is dissolved;
– legal separation; the parties remain married, but will (usually) live separately;
– dissolution of the marriage after legal separation; the parties later opt for dissolution of the marriage

Divorce is the most common form and is always pronounced by the court. The assistance of a lawyer is required for the conduct of divorce proceedings. A divorce starts with the submission of a petition.

Joint petition
If the partners agree on the divorce and its consequences, the joint lawyer submits the “joint petition for divorce” to the court.

Unilateral petition
If one of the partners disagrees with the divorce or its financial or practical consequences, a lawyer may submit a unilateral petition for divorce to the court. The other partner will receive a copy of the unilateral petition and may submit a defence. A lawyer is also required for this.

Disagree with the petition for divorce
Does the other partner not agree with the petition for divorce or subsidiary applications such as for maintenance? In that case, there will be six weeks from that moment to submit a defence. If that partner lives abroad or if he or she has an unknown permanent or temporary address, the time limit for submitting a defence is three months.

Waiver of defence
With a response declining to contest a divorce petition, the other partner lets it be known that the decision is left to the court. The response will state that the other partner has received the copy of the petition, that no defence will be submitted and that in his or her opinion no court hearing is required. In that case, there is no need to observe the period for filing a defence.

No response
Does the other partner not provide any response? The court will then decide on the petition for divorce and all accompanying applications, such as for maintenance or access to the children.
Preliminary decision on practical arrangements
If it is necessary for a decision to be taken very quickly, for example on the care of the children, or on the temporary use of the joint home, and are the parties unable to reach agreement? In that case, a lawyer can ask the court for preliminary relief. This is a separate procedure in which the court takes a decision within a short period of time. The court calls up both parties for a hearing, after which the judge will make a decision as soon as possible. Generally, the decision is provisional for the duration of the divorce proceedings.

Distribution and settlement
Divorce often also involves the division of belongings and financial assets. How this is to be treated or settled also depends on whether the parties have married in community of goods or after making a prenuptial agreement.

In principle, the parties will make agreements on the division and/or settlement together. If they are unable to do so, the court may be asked to take a decision in this respect.The court will then handle the division and/or settlement at the same time as the petition for divorce.

No oral hearing
The court will usually not conduct an oral hearing of the case if:
– the parties have jointly submitted a petition for divorce and the partners do not have minor children.
– one of the partners has lodged a petition for divorce and the other partner does not lodge a defence.

The court will handle the substance of the case without the need for a hearing.

Oral hearing
The court will conduct an oral hearing of the case if:
– one of the partners has petitioned for divorce (unilateral petition) and the other has submitted a defence
– the partners have minor children and the parenting plan or the interview show that an oral hearing is necessary.

Notice for the oral hearing
If an oral hearing takes place, both partners will be called upon to attend.This notice will state when (date) and where (location) the hearing will take place. During the oral hearing, both parties will be given the opportunity to give an oral explanation and the judge may put questions to the parties on the various subjects on which they are in dispute.

No public
No public may be present during the oral hearing. Divorce cases are not public. The court decides whether professional parties such as employees of the Child Care and Protection Board or a family guardian may attend the hearing.

No decision
A court case ends without decision if the parties withdraw the proceedings.

Decision
The court gives a decision a number of weeks after the hearing, depending on the course of the case. At the end of the hearing, the judge gives the parties an indication of how long they must wait for the decision.

Divorce order
The lawyer receives the decision of the court. This is the divorce order, in which the divorce is pronounced and possibly includes a number of decisions on other matters submitted to the court, such as maintenance, distribution and suchlike.

Mediation alongside judicial procedure
A judicial procedure focuses on the legal aspects of a conflict, in which a decision is taken by someone else (the judge) and the parties no longer have the outcome in their own hands. By means of divorce mediation, the parties together seek a solution to all aspects of the conflict. This is generally more satisfactory than a decision taken by someone else. That is why the court looks at whether the case lends itself to mediation. The parties themselves can also indicate that they wish to resolve the divorce by means of mediation.

2. What are the most common reasons that spouses may invoke?

Most divorcing partners indicate that they are terminating the relationship because they are no longer able to talk to one another and have grown apart. Incompatible plans for the future and unfaithfulness are also mentioned as reasons for divorce. Less often, disagreements about having children, financial problems and addiction problems are mentioned as the cause of the divorce.

3. How long does it take to divorce in the Netherlands?

How long it takes to get a divorce depends on the divorcing partners themselves. If good agreements can be made and a joint application for divorce can be submitted, a divorce can be completed within a relatively short period of time. That period can vary from one day to six weeks. There are eleven courts in the Netherlands. While one court can handle such requests within one day, the other will first schedule it in six weeks time. This therefore depends on the court where the dispute is heard.

If the parties do not agree, the procedure takes longer, about three to seven months. Reasons for this include the fact that the other party will be given an opportunity to submit a defence against the petition and the parties will be invited to an oral hearing of the case.

Appeal
If one of the parties disagrees with the decision of the court, an appeal against the decision can be lodged with the court of appeal. In principle, this must be done within three months of the date of the decision. The appeal must be lodged by a lawyer. Therefore, when an appeal is lodged, proceedings take much longer. It can sometimes take up to a year for the oral hearing on appeal to take place.

Cassation
Does one of the parties disagree with the ruling of the court of appeal? In that case, it is possible to take an appeal to the Supreme Court. The Supreme Court does not handle with the substance of the case. The Supreme Court only assesses whether the court of appeal has made the correct legal considerations. A lawyer must lodge an appeal with the Supreme Court. Such proceedings take several years.

4. What types of evidence can be used in divorce proceedings?

In principle, no evidence is required for the submission of a petition for divorce. Parties do not have to demonstrate why they want to divorce. A question of guilt does not arise in Dutch divorce proceedings. The only thing that the person applying for divorce must state in the petition is that the marriage has irretrievably broken down. The petitioner need not justify or substantiate this assertion and the court does not examine it. This single statement is sufficient to obtain the divorce order from the court.

When it comes to ancillary relief, however, different documents can be used as evidence in the divorce proceedings. This is often the case when it concerns child and partner maintenance, for example. Documents that can then be submitted are evidence of the income and expenses of both parties, such as tax returns and the like. On this basis, the financial capacity and requirements of both parties will be determined. When the court has to decide on the custody of, or access to, the children, reports from the Child Care and Protection Board, for example, can be submitted.

5. What other family life aspects are settled with the divorce order?

The aspects to be involved in a divorce vary from case to case. What matters is, for example, whether the parties have married in community of property, or after making a prenuptial agreement. In the case of the first, either party, in principle, requires half of the matrimonial property. In the case of the latter, the parties have before the marriage made agreements, in a deed drawn up before a civil-law notary, on how toor divide income and/or assets with each other.

If the divorcing partners have children, a parental plan must be drawn up and choices made as to the residence of the children, or parents may opt for co-parenting, or both parents may retain custody of the children and share the costs of the children, etc. In principle, both parents have custody of their child(ren). This remains the case even after a divorce. Both parents have equal rights and obligations. Only in very exceptional situations can the court decide to give custody to only one of the parent. Parental authority ends when the child reaches the age of 18.
In principle, both parents continue to look after the children after the divorce. Also, it is possible that one of the partners has to pay partner and/or child maintenance to the other partner. These amounts can be determined by the court.
Capita is also necessary to make arrangements regarding the income of the respective parties, which is reflected in the demand for partner maintenance.

6. Is my presence necessary during divorcing proceedings?

A divorce can only be pronounced by the court. Judicial proceedings will therefore have to be conducted in all cases. In practice, however, there are in fact two types of divorce proceedings before the court:

The formal procedure
In this case, both partners, in consultation with a lawyer or mediator, have reached agreement on all important issues such as maintenance, the care of the children and the division of assets and debts. In this case, the court will only be asked to confirm the agreements made. After a few weeks, the court will pronounce the divorce in a written decision (a so-called order). In this case, there is no need for an oral hearing. This means that parties do not have to go to court.

The substantive procedure
If both partners are unable to reach agreement on all important aspects of the divorce, substantive proceedings will take place. In these proceedings, the court will have to take a number of decisions.

After the divorce petition and defence have been submitted to the court, the court will invite both partners (often via their lawyers) for a so-called oral hearing. This is a court hearing in which both partners are given the opportunity to present their views orally. The judge will also often ask a number of questions on this occasion. The judge will always try to get the parties to agree on as many points as possible so that there is no need to make a decision, but if the parties do not agree, the judge will resolve the issue by taking a decision. In the Dutch legal system, it is very important that use is made of the possibilities for the parties to reach agreement with one another.

7. What kind of temporary measures concerning children can be ordered during divorce proceedings?

In divorce proceedings, provisional relief may be sought from the court as a temporary measure. These provisional arrangements will apply for the duration of the divorce proceedingsand are regulated in Sections 821 to 826 of the ‘Wetboek van BurgerlijkeRechtsvordering (Rv)’.Section 822 Rv regulates which arrangements can be requested. Section 822(1)(c, d) Rv relate to provisional arrangements with respect to children.

Section 822 ‘Wetboek van BurgerlijkeRechtsvordering’

1. The court may by order for the duration of the proceedings:
a. provide that one of the spouses will be exclusively entitled to use the marital home with the order that the other spouse must leave the home and will not be allowed to enter it any further;
b. order that each of the spouses will make available to the other the goods required for his/her daily use and the goods for the daily use by the children;
c. determine to whom of the spouses each minor child of the spouses will be entrusted, including, if the child is not already under the control of that spouse, the handing over of the child to him or her, and will also determine the amount to be paid by the other spouse for the care and upbringing of each of the children;
d. lay down rules on the division of care and education tasks or access of the spouse without custody to the children and on the provision of information or consultation of the spouses on their minor children;
e. determine the amount to be paid by one spouse for the maintenance of another spouse.
2. The provisions referred to in the first paragraph will commence on the date of the decision, unless the court has determined an earlier or later commencement date.

8. How can a parent living abroad keep in touch with his child?

A parent living in another country can visit his child in the Netherlands. Parents are obliged to make a parenting plan. This can be used to determine, for example, when the child stays with one or other parent. For example, parents can lay down that the child always lives with one parent and, during school holidays, goes to the other parent who resides abroad. In principle, parents have a lot of freedom to make agreements about this together. It is important that these agreements are in the best interests of the child and can be upheld.

9. In case a parent lives in another EU State, is that an obstacle for joint custody?

If the parent lives in another EU Member State, there are no obstacles to joint custody. In principle, both parents have custody, and this continues to be the case after the divorce. Custody is independent of the question of who the children actually reside with. This can be mainly with one of the parents, but also (equally) with both parents. For example, if a child has his main residence with one of the parents and sees the other parentonly once every 14 days and during holidays, both parents can still have joint custody they have the power of decision over the children, which relates in particular to important issues and not so much to daily care. Dutch law contains the following article on the custody of minor children:
Section 1:247‘BurgerlijkWetboek’

1. Parental custody includes the duty and right of the parent to take care of and raise his minor child.
2. Care and upbringing also include care and responsibility for the mental and physical wellbeing and safety of the child, as well as promoting the development of his or her personality. Parents will not engage in any form of psychological or physical violence or any other degrading treatment in the care and upbringing of the child.
3. Parental custody includes the obligation of the parent to promote the development of his child with the other parent.
4. A child over whom the parents exercise joint custody will, after dissolution of the marriage other than by death or legal separation, after dissolution of the registered partnership other than by death, or after termination of the cohabitation if an entry as referred to in Section 1:252(1) ‘BurgerlijkWetboek (BW)’ is made, retain the right to equivalent care and upbringing by both parents.
5. For the purposes of paragraph 4 ‘BW 1’, parents may take into account in a contract or parental plan practical obstacles that arise in connection with the dissolution of the marriage other than by death or after legal separation, the dissolution of the registered partnership other than by death, or the termination of the cohabitation if an entry as referred to in Section 1:252(1) ‘BW’ is made, but only to the extent that and for so long as the obstacles in question exist.

10. How can a divorceissued in the Netherlands be acknowledged in another EU State?

Decisions by EU judges must be recognised in all EU Member States without any traditional process, according to Article 26 EEX Convention. Recognition of a decision by an EU Member State is not required if “recognition is manifestly contrary to public policy in the Member State in which recognition is sought”. If an objection is raised to recognition of the decision, any interested party may avail himself of the procedure provided for in Sections 2 and 3 of Title III EEX Convention.

The European Court of Justice has considered the question of whether there is “conflict with public order” if the decision to be enforced is in conflict with EU law. In other words, may the Dutch court disregard a Bulgarian court ruling on grounds of public order if it is contrary to European law? No, it is the response of the ECJ. In principle, a wrong decision must be recognised. Thus, a decision given in one Member State must be recognised in the other Member States, even if the decision were incorrect.

Publisher: Van Ewijk Advocaten Mediators


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