In our internationally oriented society, international divorces are becoming increasingly common. You may have married abroad, your partner may have a different nationality, or you may have lived together in multiple countries. This raises complex legal questions: which law applies? Which court has jurisdiction? And will your divorce be recognized abroad?
Which court has jurisdiction?
The jurisdiction of Dutch courts in international divorces is determined by the European Brussels II-ter Regulation (for EU countries) and Dutch procedural law (for non-EU countries). The Dutch court has jurisdiction if: both spouses have their habitual residence in the Netherlands, the last common habitual residence was in the Netherlands and one of them still lives there, the applicant has lived in the Netherlands for at least one year, or both spouses have Dutch nationality. Under Article 3 of the Brussels II-ter Regulation, you may apply in multiple EU countries depending on your situation.
Which law applies to the divorce?
Whether Dutch or foreign law applies to your divorce is determined by the EU Rome III Regulation (Regulation 1259/2010). Spouses can jointly choose which law applies, provided it concerns the law of the country where they live, the country where they last lived together, the law of the nationality of one of the spouses, or the law of the country where the application is filed. If the spouses have not made a choice, the law of the country of their habitual residence at the time of the application applies.
Recognition of foreign divorces in the Netherlands
A divorce pronounced abroad is recognized in the Netherlands if it was pronounced by a competent court or authority and if the recognition does not conflict with Dutch public order. For EU countries, automatic recognition applies under Brussels II-ter. For non-EU countries, you must have the divorce registered in the civil registry through the municipality. Under article 10:57 BW, a foreign divorce is recognized if it was established by a decision of a court or other authority.
International aspects of alimony and property division
In an international divorce, different legal rules may apply to alimony and property division than to the divorce itself. For alimony, the 2007 Hague Protocol applies: the applicable law is in principle the law of the country where the alimony recipient lives. For property division, the 1978 Hague Matrimonial Property Convention applies, or for marriages concluded after January 29, 2019, the EU Matrimonial Property Regulation. This may mean that Dutch law applies to your divorce but the law of another country applies to the division of your property.
Children in international divorce
International divorces with children involve extra complex issues. Parental authority over children is in principle governed by the law of the habitual residence of the child, under the 1996 Hague Child Protection Convention. International child abduction is a real risk and is dealt with under the 1980 Hague Child Abduction Convention. This convention provides that a child wrongfully removed to another country must in principle be returned to the country of habitual residence. It is essential to seek legal advice on this in a timely manner.
Practical tips for international divorce
Seek specialized legal advice early. A lawyer experienced in international family law can help you determine the competent court, the applicable law, and the strategy. Gather all relevant documents: marriage certificate, birth certificates of children, proof of residences, and any prenuptial agreements. Keep in mind that an international divorce may take longer and cost more due to its complexity. At Advocaat bij Scheiden, we have experience with international divorces and help you navigate the complex legal landscape.