Have you relocated to the Netherlands with your spouse to build a new life, only to find that your relationship has since deteriorated? Now you are considering getting a divorce but, as an expat, you are unsure whether it is possible to get a divorce outside your country of origin.
In most instances expats can legally get divorced in the Netherlands. However, there are certain jurisdictional and legal requirements that must be met before a Dutch court can process your divorce.
This article provides a broad overview of how divorce proceedings work for expats in the Netherlands, including issues related to jurisdiction, children, property, and residency rights. However, we strongly recommend consulting one of our legal experts for personalised advice tailored to your specific situation.
1. Who can get divorced in the Netherlands? (jurisdiction and applicable law)
To file for a divorce in the Netherlands, Dutch courts must have jurisdiction. Dutch courts will have jurisdiction if both spouses legally reside in the Netherlands; or one spouse legally resides in the Netherlands and the divorce is filed as a joint petition.
However, even if a Dutch court has jurisdiction, Dutch law may not apply to every aspect of the divorce. In certain instances, foreign law may be applied, specifically when both spouses share a non-Dutch nationality and they either:
- jointly request that the law of their country of origin applies;
- One spouse requests this and the other spouse does not object; or
- One spouse requests this and both spouses have a substantial social connection to that country.
Once jurisdiction and the applicable law have been determined, the divorce proceedings can begin.
2. How do divorce proceedings work in the Netherlands?
All divorces in the Netherlands must be filed with a Dutch district court, and legal representation is mandatory. In uncontested divorces, both spouses may be represented by the same attorney, whereas in contested cases, each party must appoint their own attorney.
Under Dutch law, the only legal ground for divorce is the irretrievable breakdown of the marriage. No additional evidence or justification is required and it is sufficient for one spouse to assert this.
There are two types of divorce proceedings in the Netherlands:
2.1 Uncontested divorce
If both spouse are on amicable terms and wish to avoid a court hearing, mediation may be the best option. An attorney will act as a mediator and assist the spouses in reaching a mutual agreement on the terms of the divorce. If successful, the attorney will draft a settlement agreement and, if the spouses have children, a parenting plan.
Once these documents are finalised, the attorney will submit it, along with a joint petition for divorce, to the district court. The court will review the settlement terms, and if they are deemed fair and in accordance with the law, the court will issue a decree of divorce without requiring either spouse to appear in court.
2.2 Contested divorce
If you and your spouse are unable to reach an agreement, or if you choose not to attempt mediation, the divorce will proceed as a contested matter through litigation.
In such cases, an attorney will have to be engaged who will file a petition for divorce on your behalf with the Dutch district court. A court bailiff will then formally serve the petition on the other spouse.
If the spouse, who is served with the petition, chooses to contest the divorce, they will have a period of 6 to 8 weeks to file a formal written response. Thereafter, a court hearing will take place during which the judge will consider all relevant issues, including the division of property, and the custody and care of the children. The court will then issue a final judgement.
3. What happens to your children in a divorce in the Netherlands?
Regardless of you or your spouse’s nationality, if you divorce in the Netherlands and your children legally reside in the country, Dutch law will govern all matters concerning the children during the divorce proceedings.
Under Dutch law, parents are required to draw up a Parenting Plan, which outlines who will care for the children and how the care will be divided, how the parents will communicate with one another regarding parental matters, and how each parent will financially contribute to the children’s expenses.
The plan must also address whether one or both parents will have parental custody, where the children will primarily reside, which parent will have visitation rights, and how and when those rights will be exercised.
4. How is property divided in a divorce in the Netherlands?
How your property is divided during a divorce in the Netherlands depends on whether Dutch law applies to your case and whether you have entered into a prenuptial agreement that is recognised by Dutch courts.
If a valid prenuptial agreement exists and it does not conflict with Dutch law or fundamental rights, the court will recognise it, and your property will be divided according to its terms rather than under Dutch matrimonial property law.
However, if no prenuptial agreement exists, or if the agreement is not recognised by the Dutch courts, Dutch law will apply to the division of assets.
In the past, Dutch law treated all property acquired by either spouse, both prior to or during the marriage, as jointly owned. However, this changed in January 2018. For marriages entered into or after that date, only property acquired during the marriage is considered communal. Property owned individually by either spouse prior to the entering into of the marriage remains their personal property and is not subject to division upon divorce. However, property acquired during the marriage, on the other hand, will generally be divided equally between the spouses upon divorce.
5. Will you lose your right to stay in the Netherlands after divorce?
If one spouse’s residence permit was granted based on their relationship with the other spouse, their right to remain in the Netherlands may be affected by a divorce. However, there are certain instances under which the spouse may still be permitted to stay in the Netherlands after a divorce. These include situations where:
- The spouse has children with Dutch nationality;
- Where the court determines that it is in the best interest of the child for the spouse to remain in the Netherlands;
- Where returning to the country of origin would cause undue hardship; or
- Where the spouse has experienced domestic violence during the marriage.
If none of these exceptions apply, the spouse will need to apply independently for a different residence permit based on work, study, or other grounds.
6. Will your divorce be recognised in your country of origin?
It is important to understand that even if your divorce is granted by a Dutch court, there is no automatic guarantee that it will be recognised in your country of origin. Recognition depends on the national laws of your home country and whether it is a party to the Convention on the Recognition of Divorces and Legal Separations.
To avoid potential legal complications, particularly if you intend to remarry, relocate, or resolve property or custody matters abroad, it is strongly recommended that you seek advice from one of our legal experts. We can provide tailored guidance based on the laws of both the Netherlands and your country of origin.
If you are currently going through a divorce or have already finalised it, remember to update or create a will. Doing so ensures your wishes are respected and prevents unintended outcomes involving your ex-spouse or children. One of our firm’s notaries has written a detailed article on this subject, which you can read here: https://lexquire.nl/testament-opstellen-na-scheiding/.
