As an expat living in the Netherlands it is, in most cases, possible to get a legal divorce in the Netherlands that will also be recognized in your own country. International and family law expert, Pauline Montanus, explains how to file for divorce in the Netherlands and what to expect during negotiations and divorce proceedings. You can find the second part of this series here.
Contact a Specialized Family Lawyer
If you are legally married and want to divorce, your marriage must be formally dissolved by the District Court. The filing can be done by one spouse or on behalf of both spouses. To be able to file for divorce in the Netherlands you will need a lawyer. It is not possible to contact and file your divorce with the District Court yourself. You may find good family lawyers specialized in international family on the Amsterdam Mamas website.
It first needs to be determined whether the Dutch judge has jurisdiction to rule on the divorce. This will be the case when at least one spouse still has habitual residence in the Netherlands. Dutch law does not require the spouses to live physically apart for a certain period before they file for divorce.
On the day the lawyer sends the divorce papers on behalf of one spouse to the District Court, the case is ‘pending’. The lawyer will, as instructed by law, contact a bailiff to serve the divorce papers to the other spouse so this spouse is officially informed and can contact a lawyer.
In general, divorce proceedings will consist of a written petition, a written defense (term to file is six to ten weeks) and a court hearing (couple of months, depending on how busy the District Court is). After that, the judge will rule (six to eight weeks) and the verdict will be sent to your lawyer. After the District Court has ruled, there is a three-month period to appeal.
Legal Grounds for Divorce
In the Netherlands, divorce (echtscheiding) is always on the legal grounds of ‘irretrievable breakdown of the marriage’. There is generally no requirement to define or prove this. It will not be to your (financial) advantage or disadvantage if you are the person filing for divorce.
It is, however, possible for the other spouse to contest the divorce claim in the proceedings before the District Court or the Court of Appeal. Although, in general, the Dutch judge will grant the divorce request since it is typically not accepted to force marriage without possible dissolution.
For children born from the marriage, you are obliged to provide the District Court with a parenting plan that is signed by both parties. In this parenting plan, the parents need to at least describe how they will share the care for their children post-divorce, how both parents will stay in contact with the children and each other, and how they will take care of their children financially.
Children aged 12 years and older have the legal right to express their opinion before a decision is made. However, it is up to the parents or the judge to decide what will happen with them after the divorce. The children will never be asked to choose between their parents and are not able to decide themselves.
If it is not possible to send in a parenting plan signed by both parties, perhaps because it is hard to communicate with the other spouse at that moment, you will need to explain to the court what actions you have taken to amend that situation. The judge might ask the Child Protection Board to give advice about the situation. Ultimately, however, the judge will decide.
At the same time you file for divorce, it is possible to ask the District Court to rule on other subjects that are connected to the divorce such as:
- custody over the children and their residence after the divorce;
- visitation rights
- child support
- spousal support (alimony)
- division or settlement of property and assets, including the marital home
When the children and the spouse who needs the spousal support all live in the Netherlands at the time of filing the request, the Dutch judge will have jurisdiction to rule on these subjects.
If the ruling on these subjects is not done during the divorce proceedings, it is possible to ask the judge to rule on these subjects in separate proceedings later on. You will need to investigate whether the Dutch judge(still) has jurisdiction or not.
Registration of Verdict
It’s important to be aware that, after the judge has granted the divorce, the marriage is not yet considered as ended. It is first necessary to register the court’s verdict in the register of deaths, births and marriages within nine months (three months for possible appeal and, if not appealed, another six months after that).
If the divorce is not registered in time, the court’s verdict is no longer valid and the marriage will remain as before. On the day of registration of the verdict, the marriage is officially dissolved. In some cases, it will be necessary to register the divorce in your own country as well.
During divorce proceedings, it is possible to ask the judge to take preliminary measures regarding the children, the marital home and child/spousal support. These measures will, in general, only apply during the divorce proceedings and cannot be appealed.
In both definitive and preliminary measures, it needs to be determined which law is applicable to each subject (matrimonial property, alimony etc.). The Dutch judge may need to apply the law of your country of origin to a specific subject. Sometimes it is possible for the parties to make a choice of law. Your lawyer can give you information on which law applies. Since most family law lawyers do not specialize in private international law, it is wise to contact a specialist.
The primary goal of the divorce process in the Netherlands is to help the couple reach an agreement that they can both live with. Even if the petition for divorce is filed by one spouse, the judge will first investigate whether it is possible to come to an agreement about children, finances etc. through mediation.
If both parties consent to it, will they be sent to a mediator. The main part of the process takes the form of mediation meetings, where a divorce agreement is hammered out in the presence of a mediator, lawyer or notary. This can take anywhere from two to ten sessions of one to three hours each.
If the parties come to a divorce agreement, this agreement will be send to the District Court and the judge will only have to rule on the divorce itself, meaning divorce proceedings can be finalized quickly. After that, court proceedings are over.
You cannot be forced to participate in mediation, but the goal is to let the parties understand they will have to find a way to communicate in the future, especially when children are involved. If mediation is unsuccessful, the proceedings are activated and the parties are thereafter not allowed to inform the judge of the content of any mediation negotiations.
It is also possible to go through mediation before a petition for divorce is filed. In that case, the parties contact a – preferably specialized – divorce mediator themselves. If they reach an agreement, the mediator will (if he or she is also a lawyer) submit a petition for divorce on behalf of both parties, accompanied with a signed parenting plan and divorce agreement. In such cases, there will not be a court hearing and the judge will grant the divorce after a couple of weeks.
The mediator assists the parties with registration of the courts’ verdict. Make sure you are well informed about the mediator and the costs in advance. Mediation through internet without face-to-face contact is not recommended, nor supported by the Dutch Bar Association.
Documentation for a Dutch Divorce
The court may request whatever evidence it deems necessary. This can include documents such as:
- residency permit information;
- pre-nuptial agreement (huwelijkse voorwaarden), if one exists;
- income, property, assets and tax information;
- information about any children;
- parenting plan, if there are children involved.
Pauline Montanus is one of seven partners of the niche international family, juvenile and inheritance law office SCG Advocaten. They have an office in Amsterdam and in Eindhoven and are twelve lawyers total. Pauline’s practice focuses mainly on complex divorce and divorce-related cases involving children in need, international aspects (including child abduction) or where child protection measures are concerned.