What is the applicable law in a divorce proceeding between spouses of different nationalities?

For two Dutch nationals, it is always possible to divorce in the Netherlands.

The Dutch Court has international competence when the two spouses live in the Netherlands, regardless of their nationality.

If only one of the spouses lives in the Netherlands and they don’t have a common Dutch nationality, the Dutch court is authorised as well, but in some cases it is necessary that one of the spouses has lived here at least one year. With ‘live’ is meant habitual residence. Only being registered in the Netherlands is insufficient to file for a divorce.

Once the Dutch Court is authorised regarding the divorce itself, the Dutch Court is also authorised regarding other divorce elements (assets, alimony, pension, etc.), except when it comes to children. Only when the children ‘live’ in the Netherlands does the Dutch Court have international competence. If not, the Dutch Court cannot make decisions about parental authority, access rights, etc.

In the Netherlands, all cases of echtscheiding (divorce) have to be granted by the court. Since only a lawyer has the authority to file a petition for divorce with the court, the first thing that you can do is to seek legal advice from a good divorce lawyer or mediator.

According to the Dutch law, there is just one ground for divorce: irreparable breakdown of the marriage. The marriage can be said to have irreparably broken down if continuing to live together has become unbearable and there is no prospect of a restoration of marital relations. The judge is not interested in the question of blame at all. The behaviour that has led to the divorce has no influence on the decision as to how the assets should be split or how much alimony should be paid.

The divorce proceedings may be instituted by both spouses jointly (a joint petition) or by just one of them (a unilateral petition), and a divorce petition may be filed at any time after marriage: there is no requirement for the parties to have been married for a certain number of years or to have lived separately for a certain number of years.

If the divorce is by mutual request, is uncontested it is not necessary for you to go to court physically. The divorce settlement can be drawn up by a lawyer or a mediator, signed by both partners and sent to the court for authorisation via a lawyer, which is almost always given if both partners have signed the agreement. If you have children younger than 18 years, a parenting plan is a requirement. Furthermore, children from the age of 12 years have the right to be heard by the court. So even if you have a divorce with a mutual request and it is not necessary for you to go the court, children of 12 years and older will receive an invitation from the court to be heard.

If only one of you wishes to end the relationship, or you are not agreeing on topics regarding your divorce, there is a great chance that you have to go to court physically.

The divorce comes into effect when the court ruling has been entered in the Register of Births, Deaths and Marriages of your municipality by either you or your lawyer. This has to be done six months after the court ruling, it is not open for appeal anymore.

In case of divorce, you retain joint custody of the children, as during the marriage.

During the divorce procedure in the case of minor children, you need to make a ouderschapsplan (parenting plan) in which you state the following:

• How you will share responsibility for the care and upbringing of your children
• How you should inform and consult each other regarding important decisions such as the choice of school
• How the expenses related to the children are to be shared, and the amount of maintenance to be paid for the them

You must also include and discuss the children’s wishes.

If you do not wish to share parental responsibility you can petition the court to assign it to one of you. The court decides who will be granted responsibility, and if you have more than one child, the court will assign parental responsibility for each child independently. However, it is not common to assign the parental responsibility to one of you. The basic rule is that both parents have parental responsibility.