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Book 1, Article 10 of the Civil Code provides that 'the domicile of a physical person is the place or residence or, in the absence of such a place, the place where the person is staying'.

Conflict of Law/Applicable Law to be Applied

Possibility to choose Dutch divorce law (irrespective of nationality or habitual residence of the spouses) or the law of the spouses common foreign nationality.

Common nationality

common habitual residence

Lex fori

Pre-Nuptial Agreements

Always valid and enforceable.

Divorce

In 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 to continue living together has become unbearable and there is no prospect of a restoration of proper marital relations. In the case of a unilateral petition, the petitioning spouse must asset the irreparable breakdown and, if it is denied by the other spouse, prove it. the court determies whether the marriage has irretrievably broken down.

Finances/Capital/Property

If there is no marriage contract assets are divided 50:50 upon divorce.

Premarital assets and inheritance and gifts are included although reform in this area is expected.

Finances/Maintenance

There is no automatic right to maintenance if the parties can reasonably be expected to maintain themselves.

The factors that are taken into account include the existence of children, age, health, relevant qualifications and the job market.

Consideration is also taken of the payer's ability to pay, the lack of means/earning capacity of the payee and the standard of living enjoyed during the marriage.

If the marriage has lasted more than 5 years or where there are children of the marriage spousal maintenance will last a mximum of 12 years.

If the marriage is less than 5 years a spouse is entitled to maintenance for a period equivalent to the length of the marriage.

There are guidelines for the determination of the amount of maintenance to be paid.

Child Maintenance

By law, both parents keep custody after divorce, unless this is proven to be against the best interests of the children. If the parents retain joint custody after the divorce, the intention is that they should reach agreement about finances. They may ask the court to make these arrangements, If they cannot reach agreement, the court may determine a contribution. If one of the parents gets custody, the court will, on request, investigate how much child maintenance the other parent should pay. There are guidelines for the determination of the amount of child maintenance to be paid.

Cohabitants

Registered partnership exists.

Civil Partnership/Gay Marriage

Same sex marriage permitted as well as Geregistreerd partnershchap (registered partnership).

Must take form of a notarial deed and be entered in a matrimonial property register.

Maintenance can be granted.

With thanks to Carla Smeets of Smeets Glijbels
Offices at: Jacob Obrechtstraat 70, 1071 KP, Amsterdam, The Netherlands and Wetersingel 84, 3015 LC Rotterdam, The Netherlands.