An international divorce raises two separate questions before any of the substantive ones: which court has jurisdiction, and which law applies to the divorce. The answers are not always the same. Within the EU, jurisdiction follows Regulation (EU) 2019/1111 (Brussels II-ter), under which a court can be competent on several grounds, including the habitual residence of one or both spouses or their common nationality – so more than one court can be competent at the same time, and the court where the case is filed first takes precedence.

The law applied to the divorce itself is a separate question. For the EU member states that participate in the Rome III Regulation (EU) No 1259/2010, spouses may choose the applicable law within limits, and in the absence of a choice it follows their common habitual residence, then their last common habitual residence, or their common nationality. The Netherlands does not participate in Rome III. Dutch courts apply Dutch divorce law under Book 10 of the Dutch Civil Code instead, as explained below. The consequences of a divorce – property, maintenance, children – each have their own rules again, so a single divorce can be governed by more than one national law.

Which court has jurisdiction within the EU?

Regulation (EU) 2019/1111, known as Brussels II-ter, has applied since 1 August 2022. It replaced the earlier Brussels IIa Regulation (EC) No 2201/2003 and governs jurisdiction, recognition and enforcement of decisions in matrimonial matters and parental responsibility, for divorce, legal separation and marriage annulment. Within the EU, you can lodge a divorce application in the country where a court has jurisdiction. A court has jurisdiction in the country:

Where both spouses are habitually resident.
Of which both spouses are nationals.
Where the divorce is applied for together.
Where one partner applies for divorce and the other is habitually resident.
Where a partner has been habitually resident for at least 6 months and is a national of the country. If he or she is not a national, the application can be lodged if this person has lived in the country for at least one year.
Where one of the partners was last habitually resident and where one of the partners still resides.

Within the EU, the court that first receives an application for divorce that meets these conditions has jurisdiction to decide on the divorce. The court that pronounces the divorce may also decide on parental custody of children living in the country of that court. These EU rules on divorce do not apply to Denmark, which has not adopted the Brussels II-ter Regulation.

Can you divorce in the Netherlands if you live abroad?

If the couple do not live in the Netherlands, it is in principle only possible to divorce in the Netherlands if both spouses have Dutch nationality. If that is not the case, the Dutch court may still declare itself competent in special circumstances, for example if divorcing abroad is not possible. Even if the couple married abroad, they may apply for divorce in the Netherlands.

One condition is that the marriage is registered with the civil registry of the place of residence in the Netherlands. The consequences of the divorce may be different abroad: a divorce decree from an EU country is automatically recognised by other EU countries, but outside the EU this can be significantly different.

A divorce can also affect someone’s residence status in the Netherlands. If a partner holds a residence permit because he or she lived with their partner in the Netherlands, it is important to apply for a new residence permit under different conditions after the divorce. If this does not happen, the residence permit may be withdrawn.

Which law applies to your divorce?

The law of the country where the divorce application is lodged does not necessarily apply to the divorce itself. A court may have to apply foreign law, and this happens more often in the Netherlands than you might expect. For each part of the case, the court has to assess both whether it has jurisdiction and which law applies. Private international law plays an important role here: it is the umbrella term for rules that apply whenever more than one country is involved.

Book 10 of the Dutch Civil Code, which sets out these rules of private international law, entered into force in the Netherlands on 1 January 2012. The main rule is that a Dutch court applies Dutch divorce law, regardless of the spouses’ nationality or place of residence. This is different once the spouses have recorded a choice of law. They can make that choice before marrying, at a later stage during the marriage, or even once a divorce is already under way.

What law applies to your matrimonial property?

For marriages entered into on or after 29 January 2019, Regulation (EU) 2016/1103 applies. This regulation governs the applicable law and the enforcement of decisions on matrimonial property regimes. It determines which courts may rule on the spouses’ property (jurisdiction), which law applies (conflict of laws), and whether a judgment from another country’s court must be recognised and enforced.

In principle, the same court still has jurisdiction under the Brussels II-ter Regulation. If the spouses have not chosen the applicable law, the law of the state where they had their first common habitual residence applies. Failing a common habitual residence, the law of the state of their common nationality applies. If the spouses do not share a nationality, the law of the state with which they jointly have the closest connection applies.

This regulation applies only to matrimonial property. Its rules determine whether Dutch law – and so general community of property, limited community of property, or a foreign system – applies to your situation. This can have significant consequences for your assets, so it is wise to seek legal advice, for example on a choice-of-law agreement, before or during the marriage.

In summary

Jurisdiction for an EU divorce follows Regulation (EU) 2019/1111 (Brussels II-ter); several courts can be competent at once, and the court first seised takes the case.
The law applied to the divorce is a separate question: the Netherlands does not take part in the Rome III Regulation and applies Dutch law under Book 10 of the Dutch Civil Code unless the spouses have chosen otherwise.
You can sometimes divorce in the Netherlands even if you live abroad, for example if both spouses hold Dutch nationality.
For marriages from 29 January 2019 onwards, Regulation (EU) 2016/1103 separately determines which law applies to matrimonial property.
Because jurisdiction, applicable law and matrimonial property each follow their own rules, it is worth checking your position before you file.

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