Divorcing a spouse with dementia or mental illness in the Netherlands

Divorcing a spouse with dementia or a serious mental illness is possible in the Netherlands. A Dutch court dissolves a marriage on the ground of irretrievable breakdown (duurzame ontwrichting) under articles 1:150 and 1:151 of the Civil Code, and the petition of one spouse is enough: the other spouse does not have to agree, and does not have to be capable of agreeing. What changes is who acts for the ill spouse and how closely the court checks the outcome.

If that spouse can no longer look after their own affairs, the sub-district court appoints a protective representative first, and the divorce is conducted with that representative rather than with the spouse personally. The court then tests the financial settlement more strictly than it would in an ordinary divorce, because one party cannot defend their own position.

Capacity is a legal question, not a diagnosis

Dutch law works with the concept of wilsbekwaamheid, the ability to appreciate the interests at stake in a particular decision and to make and express a choice about it. It is assessed per decision and per moment. A diagnosis of dementia, bipolar disorder or schizophrenia does not by itself make a person legally incapable, and many people with a long-standing psychiatric condition instruct their own lawyer without difficulty.

The practical questions are narrow. Does the person understand that a divorce has been requested and what ending the marriage means for their housing, their income and their care? Can they weigh those consequences against each other and reach a position they hold consistently? Can they communicate that position, with support if necessary? Where the answer is yes, the divorce runs its normal course even if the person is seriously ill.

Where there is genuine doubt, the court will not decide the question on the say-so of the spouse who wants the divorce. It will want an independent medical opinion, usually from a geriatrician, a psychiatrist or a clinical geriatrics specialist, and it may hear the person itself. Because capacity fluctuates, particularly in the earlier stages of dementia and in episodic conditions, the assessment is directed at the moment the decision has to be taken and not at the person’s condition in general.

Curatele, bewind and mentorschap: the three protective measures

If the ill spouse cannot manage their own affairs, Dutch law offers three measures, and the court chooses the least intrusive one that does the job. They are set out in Book 1 of the Civil Code and are all ordered by the sub-district court (kantonrechter).

Bewind (administration, article 1:431 of the Civil Code) covers property only. A bewindvoerder manages the assets, income and debts of the person concerned. In a divorce, this is the person who deals with the division of the estate, the pension and the maintenance claim.

Mentorschap (mentorship, article 1:450) covers the personal side: care, treatment and nursing. A mentor has no authority over money, but has a real role in a divorce settlement, because the future care arrangement determines what the ill spouse actually needs.

Curatele (curatorship, article 1:378) combines both and is the most far-reaching. A person placed under curatele is handelingsonbekwaam, legally incapable of performing legal acts except where the law provides otherwise, and the curator represents them across the board. Curatorship is entered in the public central register of curatorships and administrations, which is why third parties can check it; an administration order is registered only if the court orders publication.

Bewind and mentorschap are frequently combined, which gives the same practical coverage as curatele without the loss of legal capacity. Our article on limited legal capacity sets out what that status means in general terms.

How the three measures compare

How a representative is appointed

An application goes to the sub-district court in the district where the person lives. It can be made by the person themselves, by their spouse or registered partner, by relatives up to the fourth degree, and in some cases by the institution providing their care or by the public prosecutor. The court holds a hearing, speaks with the person concerned where that is possible, and will normally want a medical statement supporting the application.

Preference is given to the person’s own choice, if they have expressed one, and after that to a close relative. That is precisely where the divorce creates a problem: a spouse who is petitioning for divorce has an obvious conflict of interest and will not be appointed, and a spouse who was already the bewindvoerder or curator will usually be replaced for the duration of the proceedings. Adult children can find themselves in the same position if they are closely aligned with one parent. Where no suitable relative is available, the court appoints a professional.

A representative appointed by the court is not the same thing as an attorney acting under a power of attorney. A power of attorney is granted voluntarily by someone who still has capacity and can be revoked; a court measure is imposed and takes precedence. A living will or continuing power of attorney (levenstestament) drawn up while the spouse was still capable does not remove the need for a court measure once capacity is lost, although the court will take the person’s earlier wishes into account. Our guide to the Dutch power of attorney explains the difference in more detail.

How the procedure runs when a representative is involved

The divorce itself follows the ordinary route. A lawyer files a petition with the district court, since a divorce petition can only be submitted through a lawyer. The petition asks for the dissolution of the marriage and usually includes the ancillary claims: the division of the estate, spousal and child maintenance, the pension, and the continued use of the family home.

The difference is the addressee. Where the respondent is under curatele, the petition is served on the curator, who conducts the defence. Where there is a bewind, the bewindvoerder acts on all property-related claims, while the spouse remains a party in person for matters that are strictly personal. A mentor is involved where the settlement touches care. In each case the representative has one duty, which is to act in the interest of the person represented, and they will take their own legal advice.

The court then applies a heavier test than usual to the settlement agreement (echtscheidingsconvenant). It will want to see the underlying figures rather than a summary: the valuation of the assets, the pension statements, the income of the paying spouse, and evidence of the care costs the ill spouse faces. Where the proposed division cannot be explained on those documents, the court will not simply record the agreement. The divorce is only entered in the register of civil status once the decision is final, and it is that registration that dissolves the marriage.

Dividing the estate and the pension

What has to be divided depends on the matrimonial property regime. Couples who married on or after 1 January 2018 without a prenuptial agreement are in the limited community of property, in which property owned before the marriage, gifts and inheritances stay outside the community. Couples who married before that date are in the general community of property unless they made prenuptial arrangements, and then everything is shared. A prenuptial agreement (huwelijkse voorwaarden) governs instead, and where it contains a settlement clause that was never applied during the marriage, the settlement still has to be carried out on divorce.

Old-age pension accrued during the marriage is dealt with separately, under the Pension Rights Equalisation Act. The default is that each spouse is entitled to half of the pension the other built up during the marriage. Notifying the pension provider within two years of the divorce means the provider pays the equalised share directly, which matters a great deal when the recipient is in care and dependent on a predictable income.

Where one spouse is seriously ill, the discussion is rarely about the halves as such. It is about liquidity and timing: whether the family home has to be sold, whether the healthy spouse can buy out the other, and how quickly the ill spouse needs cash for care that is not covered by the long-term care system.

Spousal maintenance when a spouse cannot work

Spousal maintenance (partneralimentatie) is based on the need of one spouse and the capacity of the other to pay. Where a spouse cannot work because of dementia or a severe psychiatric condition, need is not a question of retraining or of returning to work within a reasonable period; it is a structural gap between what they receive and what their living and care situation costs.

Duration is fixed by statute and is not open-ended. Since the reform that took effect on 1 January 2020, the basic rule in article 1:157 of the Civil Code is that maintenance runs for half the duration of the marriage with a maximum of five years. Three exceptions extend that. Where the marriage lasted at least fifteen years and the recipient will reach state pension age within ten years, maintenance runs until that age. Where the marriage lasted at least fifteen years and the recipient was born on or before 1 January 1970, the maximum is ten years. Where the couple have children under twelve, maintenance runs until the youngest child turns twelve. On top of that, a court can extend the period on request where ending it would be unacceptably harsh, which is the provision most likely to be invoked when the recipient is permanently unable to support themselves.

Two further points arise in these cases. Maintenance is normally indexed annually by a percentage set by the Minister of Justice and Security and published in the Government Gazette, so the amount agreed is not the amount payable years later. And where the ill spouse lives in a facility funded under the Long-Term Care Act, part of the cost is met by an income-dependent personal contribution assessed by the CAK; the court works with the actual net position after that contribution rather than with the headline cost of the place. Our guide to alimony in the Netherlands sets out the calculation in general.

Protecting what the ill spouse receives

A settlement that hands a vulnerable person a lump sum solves one problem and creates another. Dutch law does not have the trust; a trust cannot be created under Dutch law, and importing a foreign one to hold assets of a protected Dutch resident is not a workable answer either.

What Dutch law does have is the bewind. Where the ill spouse is already under administration, the proceeds simply fall within it and the bewindvoerder manages them under the supervision of the sub-district court, which requires periodic accounts. Where no measure is in place, applying for one before the settlement is executed is often the sensible order of events. Payment can be directed to an account in the name of the person concerned that is subject to the administration, and a notary can hold funds pending completion where the transfer of a home is involved. Parents and children who want to provide for the same person by will can attach a testamentary bewind to what they leave, so that the inheritance is managed rather than paid out.

The aim is the same in each case: the money stays available for the care and housing it was meant for, and someone accountable to a court decides how it is spent.

When it is the ill spouse who wants to leave

The situation is not always one way round. A spouse in the early stages of dementia, or one whose psychiatric condition is stable under treatment, may be the one who wants the marriage to end, and the fact that a protective measure exists does not silence them.

Where only a bewind is in place, the person keeps their legal capacity and can instruct a lawyer and file a petition themselves; the bewindvoerder deals with the property consequences. Where the person is under curatele, they are handelingsonbekwaam, and the petition is brought through the curator, who needs the authorisation of the sub-district court for a step of this weight. The court will want to hear the person concerned, and their own consistently expressed wish carries real weight even where capacity is limited, because the decision to end a marriage is a personal one that a representative cannot simply take on someone’s behalf against their wishes.

The reverse also happens: a family sees a vulnerable relative being pushed towards a settlement that does not serve them. Applying for a protective measure, or asking the sub-district court to replace a representative who is not acting independently, is the route to address that, and it is a separate application from the divorce itself.

Children and parental responsibility

Parental responsibility (gezag) is not affected by the divorce itself: parents who exercised joint responsibility during the marriage continue to do so afterwards. A court will only award sole responsibility to one parent where there is an unacceptable risk that the child will become trapped between the parents, or where responsibility cannot be exercised jointly for another reason. Illness is relevant only in so far as it affects the ability to take decisions about the child.

Contact is a separate question from responsibility. A parent who cannot exercise responsibility usually keeps the right to contact, and the court looks for an arrangement that fits the parent’s actual condition: shorter and more frequent visits where memory is failing, supervised contact through a contact centre where there is a safety concern, and a review point where the condition is expected to change. A parent without responsibility also keeps the statutory right to be informed about important matters concerning the child, and the other parent has a corresponding duty to provide that information.

The parenting plan (ouderschapsplan) is compulsory where there are minor children, and in these families it is worth more than the formality it can otherwise become. It is the document in which the practical questions get answered: who takes the day-to-day decisions when the ill parent cannot, how contact is arranged around a hospital admission or a move into care, and how the child is told what is happening. Our overview of child custody law in the Netherlands explains the framework in full.

International families

For couples who came to the Netherlands from elsewhere, three questions have to be separated, because they are answered by different instruments and can point to different countries.

Jurisdiction in divorce and in matters of parental responsibility is governed by Regulation (EU) 2019/1111, known as Brussels II-ter, which has applied since 1 August 2022. Habitual residence is the central connecting factor, so a couple living in the Netherlands can normally divorce here whatever their nationality. Where more than one country has jurisdiction, the court first seised takes the case, which is why timing can matter.

The law that applies to the divorce is determined by the Rome III Regulation, under which the spouses may choose from a limited list of laws and, failing a choice, the law of their common habitual residence applies. Maintenance has its own regime under Regulation (EC) No 4/2009 and the 2007 Hague Protocol, and a Dutch maintenance decision is recognised and enforced in other member states under that regulation without a separate procedure.

Protective measures are the point most often overlooked. A curatorship, administration or equivalent order made abroad does not automatically give the representative authority to act in the Netherlands. The Hague Convention of 13 January 2000 on the international protection of adults, which has been in force for the Netherlands since 1 January 2009, provides the framework for recognising such a measure where the other state is also a party. Where it is not, a Dutch measure normally has to be applied for. The same works in reverse: a Dutch curator who has to deal with a house or a bank account abroad should check early what recognition is needed there, because that step takes time and holds up the settlement.

What to do first

Three things are worth doing before a petition is filed. Establish where capacity actually stands, with a medical opinion rather than an impression, because it determines the entire shape of the procedure. Check whether a protective measure is already in place and who holds it, since a spouse or an aligned child in that role will have to be replaced. And map the care costs, present and expected, because those figures drive both the maintenance claim and the way the estate is divided.

Law & More advises spouses and family members in divorces where capacity is in issue: applying for or contesting a protective measure, conducting the divorce with a curator or administrator, negotiating maintenance and the division of the estate, and dealing with the recognition of foreign protective orders. Our family lawyers handle these cases with the discretion they require; you can also read more about our work in family law.

Frequently asked questions

Going through a divorce when dementia or mental illness is involved naturally brings up many specific, often difficult, questions. We have gathered some of the most common concerns we hear from clients to provide direct answers and clarity.