Divorce

The Netherlands has had a no-fault divorce system since 1973. There is no requirement for a period of separation prior to a petition for divorce. Divorce will be granted by the Family Court on the request of one spouse if the marriage has broken down irretrievably or, if both spouses agree, by mutual consent. No distinction is made between the nature of the marriage, as marriage is open both to heterosexual couples and same-sex couples in the Netherlands. After the divorce is granted by the court, the parties must sign a waiver to appeal and also request the registration of the divorce in the Municipality Register by the Registrar of Births, Deaths, Marriages and Registered Partnerships of the municipality where they were married.

The divorce may also be registered by one spouse. In such case, this spouse must wait until the end of the full appeal term, which is three months after the divorce decision is rendered. Once three months have elapsed, the spouse may register the divorce. Registration must take place no later than six months after the date on which the decision can no longer be appealed. The divorce becomes full and final only once this registration has taken place.

Divorce by mutual consent

After agreeing on the maintenance provisions (if any), division of matrimonial assets, and pension provisions upon divorce, the spouses submit a joint petition for divorce by mutual consent – together with a divorce agreement – to the family division of the district court. The divorce agreement sets out all the arrangements with regard to spousal maintenance, pensions, and settlement of the matrimonial property regime, as well as the tax effects of these arrangements.

Upon receipt of the petition and agreement, the Family Court judge will consider whether the terms of the divorce agreement are in accordance with the law (ie, not against public policy) and also whether the requested provisions in the joint petition are in accordance with the divorce agreement. The Family Court judge renders a divorce judgment in which the judge declares the divorce of the spouses, makes the requested provisions and attaches their divorce agreement to the decision.

Divorce by mutual consent (with children)

The divorce proceedings follow the same track as per divorce by mutual consent where no children are involved. There is an extra condition for the granting of a divorce, however. Together with the divorce petition, the spouses must submit a signed parenting plan – details of which can be found in 3.2 Living/Contact Arrangements and Child Maintenance.

Divorce upon request of one spouse

The petitioner may request for divorce and ancillary provisions (such as spousal support, the right to remain in the matrimonial home for six months after the divorce, and settlement of the matrimonial property regime). Pension equalisation will be provided for by law, unless the spouses have agreed otherwise in a marital contract (or divorce agreement). The other spouse will be granted a term within which to respond to the petition and ancillary provisions and may also ask the Family Court to make provisions on their behalf.

If the spouses have children, they should at least try to agree to the terms of a parenting plan, as mentioned earlier and elaborated upon in 3.2 Living/Contact Arrangements and Child Maintenance. If they fail to agree to a parenting plan, then they may ask the Family Court to render a decision with regard to parental responsibility.

The Family Court judge will hear both spouses and then render a decision upon the request of the petitioner and respondent. The court may have made an order to divide or settle the matrimonial regime, but that decision in itself does not result in a transfer of the assets. The parties may need to implement further acts to establish the actual division of the assets – for example, sign a deed of division and transfer of real estate with a civil law notary.

Timeline

Contentious divorce proceedings take between one and two years on average. In contrast, divorce by mutual consent takes between three and six months (based on a divorce agreement).

Service of divorce petition

The divorce petition shall be served upon the other party within 14 days once the petition has been submitted to the Family Court. If the other spouse is habitually resident within the Netherlands, this spouse will be granted a term within which to respond of six weeks upon service. If the other spouse is not habitually resident in the Netherlands or does not have a known address in the Netherlands, the term within which to respond to the petition is three months upon service. If the respondent spouse instructs a lawyer, that lawyer may request an extension of the term within which to respond to the divorce petition, provided that such request is submitted before the expiration of the initial term of six weeks or three months. The Dutch court shall be deemed to be seised at the time when the divorce petition instituting the divorce proceedings is lodged with the Family Court.

Dissolution of Registered Partnership

The same grounds and procedure as outlined for divorce also apply to the dissolution of the registered partnership of registered partners with minor children.

Registered partners without minor children may submit a declaration in order to dissolve their partnership on the ground that it has irretrievably broken down to the Registrar of Births, Deaths, Marriages and Registered Partnerships of the municipality in which they live. This declaration shall be co-signed by a lawyer or civil law notary.

Religious Marriages

The Netherlands is a secular state. The Family Court only dissolves civil marriages and registered partnerships. Only a civil divorce has legal effect under Dutch law, just as only a civil marriage will be recognised as a marriage under Dutch law. It is forbidden to have a religious marriage before the civil marriage has been solemnised.

However, it has been assumed in case law that not co-operating in a religious divorce may conflict with the due care that should be observed concerning the other party. As early as 1982, the Supreme Court ruled that the husband’s refusal to co-operate in bringing about a rabbinical divorce from his wife may be unlawful. In that case, the court may order him to co-operate after all. This ruling was confirmed again by the District Court of Rotterdam in a judgment of 8 December 2010 and the District Court of Amsterdam in a judgment of 10 April 2012. On 21 November 2017, The Hague Court of Appeal ruled in the same way in respect of the husband’s refusal to co-operate in ending a Sunni religious marriage and sentenced him to co-operate within two weeks.

On 7 March 2023, the Senate adopted the bill to combat marital captivity, which subsequently entered into force on 14 April 2023 (Stb 2023, 114). This bill ensures that the court can make arrangements in the event of a divorce – as an ancillary provision to civil divorce proceedings – whereby a spouse is ordered to co-operate in the dissolution of a religious marriage.

Judicial Separation

A legal separation can also be requested on the ground that the marriage has broken down irretrievably. Unlike a divorce, a judicial separation will not result in the dissolution of the marriage. Judicial separation has traditionally been an option for spouses who do not wish to divorce for religious reasons. As a result of the judicial separation, the matrimonial regime will be dissolved and maintenance obligations may be determined.

Spouses cannot divorce after a judicial separation until three years have elapsed, unless the request for divorce is on a mutual basis. In that case, the term is one year after judicial separation. The spouses may reconcile, which will end the judicial separation.

Jurisdictional Grounds for Commencing Divorce Proceedings

The Netherlands is an EU member state and Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (the “Brussels II ter Regulation”) applies when determining international jurisdiction in divorce matters following the dissolution of any marriage, whether it be a heterosexual marriage or a same-sex marriage. Jurisdiction will lie with the Dutch court if:

• the spouses are habitually resident in the Netherlands;
• the spouses were last habitually resident in the Netherlands (insofar as one of them still resides there);
• the respondent is habitually resident in the Netherlands;
• in the event of a joint application, either of the spouses is habitually resident in the Netherlands;
• the applicant resided in the Netherlands for at least a year immediately before the application was made;
• the applicant resided in the Netherlands for at least six months immediately before the application was made and is a Dutch national; or
• if both spouses have Dutch nationality.

Jurisdictional Grounds for Dissolving Registered Partnerships

As registered partners are not subject to any EU legislation with regard to the dissolution of their partnership, this is subject to Dutch procedural law. If the registered partnership was solemnised in the Netherlands, the Dutch authorities (whether it be the Family Court or the Registrar of Births, Deaths, Marriages and Registered Partnerships) have jurisdiction concerning any request to dissolve the partnership. If the registered partnership was solemnised abroad, the jurisdictional grounds are the same as those for commencing divorce proceedings.

Concepts of Domicile, Residence and Nationality

“Domicile” and “residence” are synonymous in Dutch law and refer to the place where an individual is habitually resident. It is the place that reflects some degree of integration – for example, the centre of one’s social life or the location where a person’s life actually takes place – as evidenced by the permanence of residence and the intention to settle there. In the Netherlands, this generally means the municipality in which an individual is registered. A stay of several months for study or vacation, for example, is not considered to constitute a habitual residence – nor is the wish to be buried in the Netherlands considered as maintaining one’s domicile in the Netherlands.

“Nationality” is the possession of citizenship of a country or countries.

Contesting Jurisdiction in Divorce Proceedings

Contesting jurisdiction in divorce proceedings is possible if there is a legitimate ground under the Brussels II ter Regulation or Dutch procedural law – for example, if the divorce application does not comply with the previously mentioned jurisdictional grounds. It would also be possible if divorce proceedings are already pending in another EU member state or non-EU member state and it is likely that the Dutch court would recognise that foreign divorce decision. Another situation in which jurisdiction could be contested is where a divorce decision has already been obtained in another jurisdiction and that decision is recognised in the Netherlands.

Staying Proceedings in Order to Pursue Divorce Proceedings in Foreign Jurisdictions

An application to stay proceedings for this purpose will only be successful if those divorce proceedings were issued earlier than the Dutch proceedings and if it is likely that the Netherlands would recognise that foreign divorce decision. When addressing this issue, the court considers factors such as:

• whether there is a jurisdictional ground for divorce based on Brussels II ter Regulation;
• the date on which the petition was submitted to the court in the other jurisdiction; and
• whether the divorce decision (if any) would likely be recognised in the Netherlands in the event of divorce proceedings in a non-EU member state.

The forum non conveniens concept is not an acceptable jurisdictional ground in the Netherlands (see 2.1 Choice of Jurisdiction for further detail).

Grounds for Jurisdiction

The EU Matrimonial Property Regulation and the EU Maintenance Regulation apply in the Netherlands. Matrimonial settlement and spousal support could be requested ancillary to divorce. The Dutch court seised with jurisdiction for divorce may also have jurisdiction to rule on maintenance obligations between spouses. A matrimonial settlement could be requested if the jurisdictional ground for divorce is not solely based on the habitual residence of the spouse-petitioner. If jurisdiction for divorce is solely based on the habitual residence of the spouse-petitioner, then an additional choice of forum agreement between the spouses is required. Where there is no choice of court agreement and the divorce jurisdiction is based on the habitual residence of the spouse-petitioner, the Dutch divorce court may accept jurisdiction only concerning Dutch real estate owned by the spouses.

In cases of separate matrimonial property proceedings after (foreign) divorce, the Dutch divorce court may accept jurisdiction based on the following grounds:

• choice of court agreement;
• common habitual residence in the Netherlands at the time the court is seised;
• last habitual residence in the Netherlands, where one of the spouses still resides at the time the court is seised;
• the respondent has their residence in the Netherlands at the time the court is seised; or
• both spouses have Dutch nationality.

If a matrimonial settlement has already been obtained as part of a foreign divorce, the court will likely consider that there is no interest for the spouses in second proceedings on the same subject. However, if the parties are co-owners of real estate in the Netherlands and that property has not been divided in the foreign divorce proceedings, each party may seek division of that real estate in the Netherlands.

Contesting Jurisdiction

A party’s ability to contest jurisdiction is limited to certain defined situations. Where the estate of the deceased falls under the EU Succession Regulation but includes assets located in a third state, the Dutch court seised to rule on the matrimonial property regime may – at the request of one of the parties – decide not to rule on one or more of such assets if its decision is unlikely to be recognised and (where applicable) declared enforceable in that third state.

As previously mentioned, another reason to contest jurisdiction is when the jurisdiction is solely based on the habitual residence of the petitioner and there is no choice of court agreement between the parties.

Lis Pendens

If proceedings between the same parties on the same subject are already pending in another EU member state, any court other than the court first seised shall – of its own motion – stay its proceedings until the jurisdiction of the court first seised is established. Where related actions are pending in the courts of different EU member states, any court other than the court first seised may stay its proceedings.

Forum Non Conveniens

The forum non conveniens concept is not an acceptable jurisdictional ground in the Netherlands. In other words, if a foreign court would accept divorce jurisdiction merely on this ground and those proceedings are commenced later than the Dutch proceedings, it is unlikely that a request to stay Dutch divorce proceedings would be granted – nor is it likely that an anti-suit injunction order issued in the foreign jurisdiction would be recognised in the Netherlands.

If ancillary to divorce proceedings, the claim is instituted by ancillary request in the divorce petition and will follow the service process of the divorce proceedings (see 1.2 Choice of Jurisdiction).

In the event of separate proceedings, the claim is instituted by summons and will be served upon the defendant by a bailiff if the defendant is resident in the Netherlands. After the defendant has been served, the summons will be lodged with the court. If the defendant is not habitually resident in the Netherlands, the summons will be served under the EU Service Regulation or the Hague Service Convention 1965.

Timeline for Financial Proceedings

If part of divorce proceedings, contentious proceedings could take between one and two years. However, financial proceedings tend to last between three and six months if based on a divorce agreement and including the negotiations. Separate proceedings take two years or more.

Dutch matrimonial law is codified in the law and therefore matrimonial property regimes are the basis for Dutch matrimonial law. The statutory regime is the limited community of property, which means that the spouses share all property except inherited wealth, donations and premarital property. If spouses do not wish to be married under the statutory regime, they must enter into a marital contract.

Dutch courts have no discretionary powers to divide or reallocate assets or resources other than that provided by the law or the marital contract of the spouses. In general, the scope of the discretionary powers of the court is very limited. The court may apply the concept of reasonableness and fairness only when the law provides for an open norm. The court is bound by the applicable matrimonial regime. If the parties have agreed in their marital contract that any community of property is excluded without any further settlement (so-called cold exclusion), the Dutch court cannot deviate from that principle and reallocate assets.

In its judgment of 7 December 1990, the Supreme Court considered an exception to the statutory division. Deviation from the law can only be accepted in very exceptional circumstances, whereby it would be unacceptable – according to standards of reasonableness and fairness – for one spouse to invoke the statutory division-by-half against the other spouse. In the case in question, a non-wealthy man married a much older, well-to-do woman in community of property. Five weeks after entering into marriage, the man took his wife’s life (Murder Marriage, NJ 1991/593).

Financial Disclosure

Under Dutch procedural law, spouses must declare all information and evidence that is relevant to the case and the court’s decision. However, there is no concept of contempt of court under Dutch law and therefore no procedural penalty for failing to declare all such information. In the event of a spouse finding out at a later stage that the other spouse did not declare all assets, there is a sanction in matrimonial law. It is also quite possible in financial proceedings to formulate a request to disclose specific financial information (843a Rv request). The request must be substantiated to prevent fishing expeditions.

A spouse who wilfully conceals, keeps hidden, or causes the loss of an item of community property or property that forms part of the nettable capital under a marital contract – the value of which is not included in the statutory division or the settlement under the marital contract as a result – may not settle its value but must transfer it entirely to the other spouse or compensate the other spouse in full instead. The cheated spouse may initiate new proceedings for this.

Trusts

The concept of trust is alien to Dutch law. Therefore, if the settlor of an English or American trust is a Dutch national and the trustee is habitually resident in the Netherlands, then it could well be that a Dutch court will not recognise the trust because of insufficient nexus with the Netherlands.

Further, in the Netherlands, there is a concept of “forced heirship”, which may hinder the implementation of the trust. Under Dutch law, a contribution of capital to a trust that violates the forced heirship is valid in principle. The forced heir must ask for that legitimate share in the estate. In such a case, the forced heir could partially nullify the contribution of assets to the trust. Since 2010, the Netherlands has made an arrangement in the form of the Dutch Separate Private Funds (Afgezonderd Particulier Vermogen, or APV) scheme for the taxation of – among other things – trusts.

Offshore trusts

In general, Dutch courts will deal with the matrimonial property regime as a whole, including foreign assets (if these are part of the matrimonial regime). However, when it comes to the enforcement of such orders, exequaturs must be obtained in the jurisdiction where such order is to be enforced. A Dutch court is not likely to consider an undefined claim in a trust in proceedings regarding the settlement of matrimonial property regimes because at the time of the divorce:

• it is not a given that the beneficiary will actually receive anything; and
• the amount of the claim is not fixed (were the beneficiary to receive anything).

If the claim itself is not awarded, it is unlikely that a Dutch court would want to make an order in respect of a property held in an offshore trust. A Dutch court will only make an award if the claim is defined at the reference date (ie, date of the divorce petition). One exception would be where foreign matrimonial law applies to the settlement of the matrimonial property regime and, under that foreign law, property held in a trust will be considered in the settlement of the matrimonial property regime. In that case, a Dutch court might be willing to make an order applying the foreign law. However, even then an exequatur must be obtained in the jurisdiction where such orders are to be enforced.

Under Dutch law, spousal maintenance is a separate provision from asset division. The concept of spousal maintenance is codified in the law; therefore, most prenuptial or postnuptial agreements will not contain a clause on spousal support. However, this does not mean that the parties can exclude maintenance obligations after divorce. On the contrary, under Dutch law, prenuptial contracts in which maintenance due according to the law is renounced are null and void.

As long as the parties are married, they have a financial obligation to support each other if there is a need for support. Interim spousal support is therefore granted if the needs for support are established and the other spouse has financial capacity to do so.

Calculation of Spousal Maintenance Obligations

According to Dutch maintenance law, spouses’ obligation to contribute to each other’s living costs depends on two factors ‒ namely, “needs” and “capacity”. Needs are based on the level of income and wealth the spouses had during the final years of the marriage. Since 1 January 2023, the calculation of the needs and capacity for spousal support is to a large extent formula-based.

Needs

The need for spousal maintenance can be determined using either a schedule of expenditures or the so-called 60% method. The starting point for the calculations is the net family income available during the marriage. Expenses for the children are deducted from this, which results in an amount remaining that is available to both partners. As the costs of living for a single person (parent) are higher than that for spouses living together, half of the family income to be shared is increased by 20%.

Capacity

The court will take into consideration reasonable expenses – for example, housing expenses (30% of the net spendable income), health insurance costs, and a small portion for unavoidable miscellaneous costs. In standard cases, the expenses are capped at an amount equal to the social assistance benefit then increased by 30% of the net spendable income. Sometimes a comparison will be made between the capacity of the spouses. Family courts deem it reasonable that the maintenance creditor does not have more to spend than the maintenance debtor.

Impact of Children on Spousal Maintenance Obligations

Spousal support is not linked to children. Married persons without children might also have maintenance obligations towards each other. However, children will influence the level of maintenance indirectly – given that the parent with care for the children will most likely give up a career and work part-time or, in some cases, not at all. The career and income prospects will therefore most likely have a negative impact on the ability to become financially independent and self-supporting.

Spousal support is subject to reasonableness and fairness, whereas child support is considered a fact (see 3.2 Living/Contact Arrangements and Child Maintenance). Allocation of spousal maintenance is very likely in the case of a long marriage with children, but it is not automatic. The older the children are, the more likely it is that a court will expect the parent with care to be (partially) self-supporting where possible.

Duration of Spousal Maintenance

The following terms apply, depending on the circumstances.

• Marriage without children – if spouses are married without children, the maximum term for spousal support is half the duration of the marriage (up to a maximum of five years).
• Marriage with children – if there are children from this marriage, the term for spousal maintenance will be extended until the youngest is 12 years old or for the statutory term (if the latter is longer).
• Long marriages – if the marriage lasts longer than 15 years and the maintenance creditor is less than ten years from the statutory retirement age, then the maintenance term will be prolonged until the statutory retirement age (currently 67) or for the statutory term (if the latter is longer).
• Remarriage or cohabitation – according to Dutch law, a maintenance obligation towards the other spouse will end if the maintenance creditor remarries or begins to cohabit with someone as though they were married under the law.

Marital Contracts

Spouses can exclude the statutory regime by entering into a prenuptial or postnuptial agreement. The mandatory form is a notary deed. They can define their own system, provided that the chosen arrangement is not contrary to the law, good morals, or public policy.

Cold Exclusion

Exclusion of any community of property without further settlement (“cold exclusion”) will result in the spouses having no claims whatsoever to settle against each other. This type of contract is mostly made to insulate the family against a spouse-entrepreneur’s business creditors during the marriage.

Netting Covenants

Many Dutch marital contracts provide for a separation of any community of property with a so-called periodical netting clause. By adopting such a clause, the parties undertake that they will settle their incomes annually after the household costs have been paid. What remains after deducting the household costs from the net incomes will be settled equally, which means 50/50.

These periodical netting clauses have been adopted frequently since the 1970s, resulting in a large stream of case law. In 2002, this case law was codified in the Law on Netting Clauses. If, at the end of the marriage, a periodical netting obligation agreed in the marital contract is not complied with, then the present capital is presumed to have been formed from what was netted – unless there is a different obligation, owing to the requirements of reasonableness and fairness with regard to the nature and extent of the netting obligation. In practice, the settlement of this regime will provide the same financial result as the settlement of the community of property.

Other Systems

The spouses can agree to a “less cold” exclusion contract – for example, they can agree to an exclusion of community of property during their lives, but with a so-called final netting clause or “as if” clause in the event the marriage ends by death or in the event the marriage ends by either death or divorce. Although the parties have excluded any community of property during their marriage, they agree to settle their matrimonial regime “as if” they were married in community of property. De facto, this means that they will divide the balance of each spouse’s capital equally (50/50). Such a clause is mostly made to avoid high tax claims for the surviving spouse in the event of death.

The “Community of Benefit and Income” and “Community of Profit and Losses” are matrimonial regimes that lapsed on 1 January 2012. Spouses may still adopt these systems but will need to elaborate that system in full in the marital contract. Spousal maintenance cannot be waived in a prenuptial agreement.

Marital Contracts in Court Proceedings

As the concept of marital contracts is codified in Dutch matrimonial property law, marital contracts will be upheld by the Family Court and therefore matrimonial settlements upon divorce or after divorce (in the case of separate proceedings) will be determined under the marital contract. The statutory regime will apply in the unlikely event that the marital contract is not upheld. In such case, there will likely be a defect in either the marital contract itself or during the drafting stage of the marital agreement. Examples can be found in the Supreme Court judgments dated 20 January 1989 (NJ 1989, 766)(“Civil-Law Notary of Groningen”) and 9 September 2005 (NJ 2006, 99) (“Marital Contract of Zeeland”), respectively.

Cohabitation Without Contract

If the partners have not signed a cohabitation agreement, in which they have arranged for their financial affairs after the breakdown of their relationship, then there is no statutory law or safety net that provides for certain rights or obligations ‒ irrespective of whether they have children or not. Cohabitants do not acquire any rights by virtue of length of cohabitation or children born from their relationship. If they do have a cohabitation agreement, this is subject to the contractual rights and obligations as provided for by the Dutch Civil Code. Such a contract is not subject to the Family Code.

Registered Partnerships

Registered partnerships do have a basis in the Family Code. Registration of partnership takes place by means of a deed of registration of partnership drawn up by the Registrar of Births, Deaths, Marriages and Registered Partnerships. Matrimonial property law and spousal maintenance law have been declared applicable in the same way as they apply to marriages.

Court decisions dealing with matrimonial property law settlements and/or spousal maintenance are ordered to have immediate effect and therefore such a decision is enforceable. The decision can be served upon the spouse-debtor by a bailiff, with a request for compliance within a certain timeframe – failing which, the bailiff may take assets into custody or seize financial assets or the wage of the spouse-debtor.

International enforcement without international treaty is only available if an exequatur has been obtained from the Dutch court. Following the Supreme Court judgment dated 26 September 2014 (ECLI:NL:HR:2014:2838) (“Gazprom”), the foreign decision will need to meet the following conditions:

• the jurisdiction of the foreign court is based on a ground of jurisdiction that is generally acceptable by international standards;
• the foreign decision was taken in legal proceedings that meet the requirements of proper and sufficiently safeguarded justice;
• the decision is binding and can no longer be appealed against and, further, it can be enforced in the country of origin;
• the recognition of the foreign decision is not contrary to Dutch public policy; and
• the foreign decision is not incompatible with:
1. a decision of the Dutch court granted to the same parties; or
2. a previous decision of a foreign court that was granted to the same parties in a dispute that concerns the same subject matter and is based on the same cause – provided said earlier decision is eligible for recognition in the Netherlands.

The following terms apply where the financial order is subject to international regulations and conventions.

• Matrimonial property settlement subject to EU Matrimonial Property Regulation – recognition and enforcement is available based on the regulation.
• Spousal maintenance subject to the EU Maintenance Regulation – recognition and enforcement is available based on the regulation.
• Spousal maintenance subject to the Lugano Convention 2007 – recognition and enforcement is available based on the convention.
• Spousal maintenance subject to the Hague Convention on the International Recovery of Child Maintenance and Other Forms of Maintenance 2007 – recognition and enforcement of spousal support is only available if the request for recognition and enforcement is made simultaneously with the request for recognition and enforcement of child maintenance.

In the Netherlands, all family law cases are heard in closed session. The court will decide whether other individuals may attend a hearing. Usually, individuals other than the parties are only allowed if both parties agree to their attendance and the court considers the information that these individuals may have useful for deciding the case. Court decisions are in writing and published anonymously on the website of the Judiciary.

Media and press will not have access to these closed court hearings. However, there are no reporting restrictions when referring to anonymously published court decisions.

In the Netherlands, parties may use several mechanisms to resolve financial disputes without going to court.

Mediation

The parties resolve their dispute together under the guidance of an independent mediator. The mediator assists the parties in clarifying their interests and positions. This is only available voluntarily. Once the parties have reached an agreement, the mediator will draft a divorce agreement in which the arrangements will be recorded. This will be submitted to the Family Court with a request to adopt the divorce agreement in its order. The divorce decree will be enforceable like any other court order.

Collaborative Divorce

Under this method, the parties resolve their dispute together with the assistance of their own lawyers, who work together to resolve the dispute of the parties in a respectful manner without interference from the court. This process is supervised by one or two neutral advisors – namely, a collaborative coach and sometimes a financial professional. Once the parties have reached an agreement, the lawyers will draft a divorce agreement in which the arrangements will be recorded. This will be submitted to the Family Court, together with a request to adopt the divorce agreement in its order. The divorce decree will be enforceable like any other court order.

Court-Offered Mediation

Mediation and collaborative divorce are not mandated by law – nor is there an obligation for the spouses to enter into mediation prior to seeking a resolution from the court. Nevertheless, the court will always offer the spouses mediation (mediation naast rechtspraak) before scheduling the case for a hearing. If both spouses accept the mediation offer, the case will be adjourned, pending the result of mediation. If mediation is successful, the mediation result or divorce agreement will be incorporated in the court decision, thereby becoming enforceable as per any other court decision. If mediation fails, the case will be scheduled for a hearing – following which, a court decision will be rendered.

Arbitration

Arbitration has been available since 2012 as a means by which the spouses can resolve their dispute by mutual consent without involving the court. This is not used very often in the Netherlands. Arbitration has its basis in Articles 1020—1077 of the Dutch Civil Procedure.

Grounds for Jurisdiction

The Brussels II ter Regulation and the EU Maintenance Regulation are applicable in the Netherlands. Children’s remedies and child support could be requested as an ancillary provision in divorce proceedings if either:

• the child has its habitual residence in the Netherlands; or
• the spouses are two Dutch nationals living abroad with their child and both agree that the Dutch divorce judge will decide upon the matters regarding parental responsibilities and/or child support.

Remedies for disputes concerning parental responsibilities or child support can also be requested in separate proceedings if the child is habitually resident in the Netherlands or the maintenance debtor is resident in the Netherlands. Grounds for jurisdiction may also be found in the Hague Child Protection Convention 1996 (the “1996 Hague Convention”) and the Hague Protection of Minors Convention 1961 (in respect of non-contracting states to the 1996 Hague Convention).

As an EU member state, the Netherlands will apply the Brussels II ter Regulation when determining international jurisdiction in matters regarding parental responsibilities and the EU Maintenance Regulation when determining jurisdiction in matters regarding child support obligations. In these regulations, the concepts of domicile, residence and nationality are frequently used to determine jurisdiction (see 1.2 Choice of Jurisdiction for further details and definition). Usually, the child’s residence matches that of the parent with whom they live.

Child Arrangements

Divorce proceedings

As mentioned in 1.1 Grounds, Timeline, Service and Process, there is an extra condition for the granting of divorce if the spouses have minor children. The spouses must submit – along with the divorce petition – a signed parenting plan, whereby they have agreed upon provisions with regard to:

• parental authority (eg, principal residence and the care and contact arrangement between the children and non-resident parent);
• information and consultation between parents on important matters in the lives of the children (eg, schooling, medical treatment, and religion); and
• financial matters (eg, child support and the management of the children’s wealth).

If the parties do not agree to some of the elements of the parenting plan or cannot agree on any provision for the children, the Family Court will schedule a hearing in which they will hear the case and make the appropriate provisions. If the court deems it useful, the court may ask for advice from the Child Care and Protection Board. However, the court is not required to ask for such advice.

The main rule is that joint parental authority will be maintained upon divorce. Only in very rare cases will one parent be vested with sole parental authority – for example, in cases of domestic abuse or drug or alcohol abuse that poses a threat to the child’s safety. Such a decision will not be rendered without investigations by and a written advisory report from the Child Care and Protection Board. For more information on how the courts approach disputes regarding parental responsibilities after divorce, please refer to 3.3 Other Matters.

Joint parental responsibility for parents who are neither married nor registered as partners

On 1 January 2023, a bill entitled Directe koppeling van erkenning en gezamenlijk gezag voor ongehuwde en niet-geregistreerde partners (Stb 2022, 242) (in English: “Direct link between recognition and joint custody for unmarried and unregistered partners”) entered into force. As a result, both parents will be automatically vested with parental authority ‒ whether or not they are married or in registered partnerships. Parents will have joint parental authority for children born on or after 1 January 2023, provided the father recognises the child as his. For a completely domestic matter, it is thus still relatively easy to check whether both parents have parental responsibility.

Public policy

Child arrangements are a matter of public policy. This means that the Family Court always has the authority to vary an arrangement made by the parents if the court does not consider such arrangement to be in the best interests of the children.

Child Support

In the Netherlands, parents must financially support their children until said children reach the age of 21. Child support is defined as a contribution to the costs of care and upbringing if the child is still a minor (ie, under the age of 18) and a contribution towards the costs of care and education if the child is a young adult (ie, between 18 and 21 years old). Study costs also include the costs that must be paid from an additional, interest-bearing loan granted to the student. Parents may agree contractually to a longer term (ie, to continue their financial support beyond the child’s 21st birthday) if they wish so.

Needs of minors

Needs do not have to be demonstrated when children are minors. In order to determine the need for a contribution to the costs of a child’s care and upbringing, a system has been developed based on the income and spending patterns of families in the Netherlands as collected by Statistics Netherlands (Centraal Bureau voor de Statistiek, or CBS) in co-operation with the National Institute for Budget Information (Nationaal Instituut voor Budgetvoorlichting, or Nibud).

According to CBS research, parents spend a certain percentage of the family income on their children. This study also shows that, as more children are added to the household, the total costs of the children increase ‒ although the average costs per child will decrease. Dutch courts calculate the child’s needs according to the fixed amounts that can be found in the family net income tables provided by Nibud. In the Nibud table, the child allowance (Kinderbijslag) is not included in the figures. If there is additional health coverage for the children, the premium for this additional insurance shall be added to the figure.

Needs of young adults/students

The Nibud tables do not provide for the calculation of the needs of young adults aged between 18 and 21. No standards have been developed in order to determine the needs of young adults – usually, students who are subject to the Student Finance Act 2000 (Wet Studiefinanciering, or WSF).

According to the WSF, the budget for a student consists of a standard amount for living expenses, which is increased by tuition fees or a contribution towards the cost of tuition. For needs assessment generally, the WSF standard can be applied, whereby the student can demonstrate that they require a higher budget for a certain item. It is possible to calculate the needs of non-studying young adults using the WSF criteria, minus the study costs included therein (for books and learning materials). Health insurance is considered to be included in the WSF norm.

Calculation of support

Child support is formula-based and there are few factors to debate, given that courts expect responsible parents to financially contribute towards the costs of their children. The capacity of the parents is calculated using a formula set by the Dutch Judiciary’s Maintenance Criteria Working Group: 70% of the “net spendable income” – (0.3 x net spendable income + social assistance benefit). The only variable elements are the net family income and the costs of the care arrangements (Zorgkorting), which vary depending on the amount of time spent by the non-resident parent with the child.

Zorgkorting are determined by the number of days per week – including holidays – that the child spends with the non-resident parent, as follows:

• for one day of care per week, there is a reduction of 15% of the needs of the child;
• for two days of care per week, there is a reduction of 25%; and
• for three days of care per week, there is a reduction of 35%.

If the child spends less than one day a week with the non-resident parent, a reduction of 5% of the child’s needs is applied.

Parenting plan

Child support is one of the mandatory elements to be included in the parenting plan that must be submitted together with the divorce petition. If the parents agree on child maintenance arrangements without the involvement of the court, they may adopt their arrangements in the parenting plan and submit that plan to the Family Court.

As mentioned previously, child arrangements are a matter of public policy. As such, the Family Court can always vary the arrangements if it believes they are not in the interest of the child. This would be the case if the parents agreed in the parenting plan to a child support lower than the amount to be paid according to the statutory standards. However, parents can always agree to contribute a higher amount than that required by the statutory standards.

Court proceedings

If the parents cannot agree on child maintenance arrangements themselves, they can always seek a resolution from the court. In divorce proceedings, this is possible as an ancillary provision to the divorce. It is also possible to apply for child support payments in separate proceedings – either via the joint parental authority dispute resolution procedure (“1:253a BW case”) for a prompt resolution from the court or in regular maintenance proceedings (see 3.3 Other Matters for further details). These options are also available when there is a request to vary existing child support obligations.

Young adults between the age of 18 and 21 may seek a variation of existing child support contributions themselves in regular maintenance proceedings. Minor children are always represented by one of their parents in court proceedings.

Important Matters in Lives of Children

As discussed in 3.2 Living/Contact Arrangements and Child Maintenance, in order to be granted a divorce, spouses must submit – together with the divorce petition – a signed parenting plan containing provisions on important matters in children’s lives. This obligation also exists for cohabiting parents who break up and have joint parental authority but have opposing views on the upbringing of a child. If they cannot agree on these matters, they may seek the resolution of the Family Court in the same way as per contact and care arrangements or child support contributions.

Disputes regarding parental responsibilities after divorce

Where parents cannot reach an agreement on a specific important matter regarding their child – ie, one for which a common decision is required by law ‒ after their divorce, one parent may seek an order from the court in its place. Under the joint parental authority dispute resolution procedure (1:253a BW case), Dutch family law provides for parents with joint parental authority to seek a prompt resolution from the Family Court if they cannot agree on:

• a child’s living arrangements and/or the time/contact the child will have with each parent;
• how they consult each other on important matters;
• how they share the costs of the child(ren); or
• how to manage the child(ren)’s assets.

The court will appoint the matter for a hearing within six weeks of the petition being submitted by one of the parents. The other parent has until the date of the hearing to submit a response.

In cases where only one of the parents is vested with parental authority, a parent may still seek a resolution from the Family Court. However, this will follow the regular dispute resolution process – meaning that, depending on the availability of the judges, it may take more than three months for the case to be appointed a hearing.

Hearing Children

The law provides for children aged 12 and above to be heard in matters involving them ‒ except in child support cases, where children can be heard from 16 years old. In international child abduction cases, a child may be heard at a younger age depending on their maturity. In these cases, the child is represented by a guardian at litem. In cases about parentage, a child is always represented by a guardian at litem. The Family Court will hear the children in chambers without their parents and will consider what the child has told the court. However, the court ‒ rather than the child ‒ will decide. Children do not give evidence in court and there is no cross-examination of children.

Parental Alienation

Parental alienation is a topic that has gained more and more attention in the past few years. In January 2021, an advisory report by a team of experts on parental alienation and complex contact issues was published. The expert team recommends that the government takes responsibility for enforcement – in particular, by imposing sanctions – in the event of non-compliance with the statutory rules or non-compliance with parental agreements or court decisions.

Responsibility for enforcement should no longer be solely with the parents. A divorce advisory team should have resources at its disposal ‒ via a quick court resolution mechanism – for civil law enforcement, such as fines and penalties. The law should be adjusted where necessary to implement these recommendations. Courts should uphold contact arrangements between a child and non-resident parent, whether unsupervised or supervised.

Introduction of Combined Family Names

On 1 January 2024, a bill called Introductie gecombineerde geslachtsnaam (Stb 2023, 116) (in English: “Introduction of Combined Family Name”), entered into force. It allows parents to give their child the family name of both parents.

It will not be mandatory to choose a double family name. However, if parents do not make a choice, a child will have the family name of the father or co-mother in the case of a marriage or registered partnership. For unmarried or unregistered partners, the child automatically has the surname of the birth mother.

With this bill, a double family name can consist of up to two names and is written without a hyphen. The bill provides that this will be possible for children born after 29 January 2019.

Mediation, collaborative law, and court-offered mediation are available in children’s disputes as per financial disputes. For further details, please refer to 2.9 Alternative Dispute Resolution (ADR).

See 2.8 Media Access and Transparency.