In an increasingly international society, cross-border divorces are becoming more common. When spouses have different nationalities, have lived in different countries, or when one partner moves abroad, complex legal questions arise. This is especially true when children are involved. This article discusses the key aspects of international divorce with children from a Dutch perspective.
Which court has jurisdiction?
Jurisdiction for international divorces within the EU is governed by the Brussels IIter Regulation (Regulation 2019/1111), effective since August 1, 2022. Multiple grounds can establish jurisdiction: the habitual residence of both spouses, the last common habitual residence, the respondent's residence, or common nationality. For decisions about parental authority and visitation, the court of the child's habitual residence generally has jurisdiction (Article 7 Brussels IIter). This may be a different court than the one handling the divorce itself.
International child abduction
One of the greatest risks in international divorce is a parent taking the child abroad without the other parent's consent. This constitutes international child abduction under the 1980 Hague Convention. The child must be promptly returned to their habitual residence. In the Netherlands, return applications are handled by The Hague District Court, which should decide within six weeks. Return can only be refused in exceptional circumstances, such as serious risk of harm to the child.
Relocation abroad with children
After divorce, a parent may wish to relocate abroad with the children. This requires the other parent's consent if they share custody. If consent is refused, the relocating parent must petition the court (Article 1:253a BW). The court weighs the necessity of the move, how well it's been planned, continued contact with the other parent, the children's age and ties to their current environment, and available alternatives. Consult an international family law specialist early in the process.