An international divorce raises two questions before any of the substantive ones: which court may hear the case, and which law it will apply. They have different answers. Jurisdiction within the European Union follows the Brussels rules, under which a court may be competent on grounds including the spouses’ habitual residence, the respondent’s residence, or common nationality – so several courts are often competent at once, and the first properly seised takes the case.

The law applied to the divorce itself is determined separately, and for participating member states follows the Rome III rules: the parties may choose the applicable law within limits, and failing a choice it follows habitual residence, then last common habitual residence, then common nationality. The consequences – property, maintenance, children – each have their own rules again, so a single divorce can be governed by more than one national law.

Making a request within the EU

Regulation (EC) No 2201/2003 (or: Brussels II bis) has been applicable to all countries within the EU since 1 March 2015. It governs jurisdiction, recognition and enforcement of judgments in matrimonial matters and parental responsibility. The EU rules apply to divorce, legal separation and marriage annulment. Within the EU, an application for divorce can be lodged in the country where the court has jurisdiction. The 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 petition can be submitted 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 the 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 the court. The EU rules on divorce do not apply to Denmark because the Brussels II bis Regulation has not been adopted there.

In the Netherlands

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

A condition is that the marriage is registered at 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. Outside the EU this can be significantly different.

A divorce can have consequences for someone’s residence status in the Netherlands. If a partner has a residence permit because he or she lived with his or her partner in the Netherlands, it is important that he or she applies for a new residence permit under different conditions. If this does not happen, the residence permit may be revoked.

Which law applies?

The law of the country in which the divorce application is lodged shall not necessarily apply to the divorce. A court may have to apply foreign law. This happens more often in the Netherlands. For each part of the case it has to be assessed whether the court has jurisdiction and which law has to be applied. Private international law plays an important role in this. This law is an umbrella term for areas of law in which more than one country is involved.

On 1 January 2012, Book 10 of the Dutch Civil Code entered into force in the Netherlands. This contains the rules of private international law. The main rule is that the court in the Netherlands applies Dutch divorce law, regardless of the nationality and place of residence of the spouses. This is different when the couple has had their choice of law recorded. The spouses will then choose the law applicable to their divorce proceedings. This can be done before the marriage is entered into, but it can also be done at a later stage. This is also possible when you are about to divorce.

Regulation on matrimonial property regimes

For marriages contracted on or after 29 January 2019, Regulation (EU) No 2016/1103 will apply. This regulation governs applicable law and the enforcement of decisions in matters of matrimonial property regimes. The rules it lays down determine which courts may rule on the property of the spouses (jurisdiction), which law applies (conflict of laws) and whether a judgment given by a court of another country is to be recognised and enforced by the other (recognition and enforcement).

In principle, the same court still has jurisdiction according to the rules of the Brussels IIa Regulation. If no choice of law has been made, the law of the State where the spouses have their first common residence will apply. In the absence of a common habitual residence, the law of the State of nationality of both spouses will apply. If the spouses do not have the same nationality, the law of the State with which the spouses have the closest connection shall apply.

The regulation therefore applies only to matrimonial property. The rules determine whether Dutch law, and hence general community of property or limited community of property or a foreign system, is to be applied. This can have many consequences for your assets. It is therefore wise to seek legal advice on, for example, a choice of law agreement.

For advice prior to your marriage or for advice and assistance in the event of a divorce, you can contact the family law lawyers of Law & More. At Law & More we understand that the divorce and subsequent events can have far-reaching consequences on your life. That is why we take a personal approach. Together with you and possibly your ex-partner, we can determine your legal situation during the interview on the basis of the documentation and try to record your vision or wishes.

In addition, we can assist you in a possible procedure. The lawyers at Law & More are experts in the field of personal and family law and are happy to guide you, possibly together with your partner, through a divorce process.