International divorce: which court decides and which law applies?

In an international divorce, two questions come first: which court has jurisdiction, and which law applies to the divorce. Within the EU, jurisdiction follows Regulation (EU) 2019/1111 (Brussels II-ter), so several courts can be competent at once and the court seised first takes the case; a Dutch court then in principle applies Dutch divorce law, whatever the spouses’ nationality.

The consequences of the divorce, such as matrimonial property, maintenance and arrangements for children, each follow their own rules. One divorce can therefore be governed by more than one national law.

Kedụ ụlọ ikpe nwere ikike n'ime EU?

Brussels II-ter has applied since 1 August 2022 and replaced Regulation (EC) No 2201/2003 (Brussels IIa). It governs jurisdiction and the recognition of decisions on divorce, legal separation and marriage annulment. Under Article 3, the courts of an EU member state have jurisdiction if:

• both spouses are habitually resident there;
• the spouses were last habitually resident there and one of them still lives there;
• the respondent is habitually resident there;
• in a joint application, either spouse is habitually resident there;
• the applicant has lived there for at least one year immediately before filing, or for at least six months and is a national of that state;
• both spouses are nationals of that state.

If courts in more than one member state are competent, the court that first receives a valid application decides on the divorce. Denmark does not take part in Brussels II-ter, so these rules do not apply there.

Ị nwere ike ịgba alụkwaghịm na Netherlands ma ọ bụrụ na ị bi na mba ọzọ?

Sometimes. If no EU court is competent under Brussels II-ter (Article 6), Dutch national rules decide. In practice a Dutch court then mainly accepts jurisdiction if both spouses are Dutch nationals, or in exceptional cases where divorcing elsewhere is impossible or cannot reasonably be required.

It does not matter where you married. A Dutch divorce only takes effect once the decision is registered in the civil register, and this must be done within six months after the decision has become final. If you married abroad, the divorce is registered with the municipality of The Hague.

Recognition is a separate point. A divorce granted in one EU member state is recognised in the other member states without special procedure. Outside the EU, recognition depends on the law of the country concerned and can take extra steps.

Gịnị na-eme akwụkwọ ikike obibi gị mgbe ị gbasịrị alụkwaghịm?

If you live in the Netherlands on a residence permit as the partner of your spouse, the divorce removes the basis of that permit. You must report the change to the Immigration and Naturalisation Service (IND), which can withdraw the permit.

Depending on how long you have lived here and your own situation, you may be able to apply for a permit on a different basis, such as work or continued residence. Check this with the IND or a lawyer before the divorce is final, so there is no gap in your residence rights.

Iwu dị aṅaa metụtara ịgba alụkwaghịm gị?

The court where the ngwa ịgba alụkwaghịm is filed decides both whether it has jurisdiction and which law applies, for each part of the case. These conflict rules are called private international law.

The Netherlands does not take part in the Rome III Regulation (EU) No 1259/2010 on the law applicable to divorce. Book 10 of the Dutch Civil Code (Burgerlijk Wetboek, BW), in force since 1 January 2012, contains the Dutch rules instead. The main rule is that a Dutch court applies Dutch divorce law, regardless of nationality or residence. In limited cases the spouses can opt for the law of a nationality they share.

Which law applies to your matrimonial property?

For marriages entered into on or after 29 January 2019, Regulation (EU) 2016/1103 applies. It sets out which court may rule on the spouses’ property, which law applies, and when a foreign judgment must be recognised and enforced.

The court handling the divorce under Brussels II-ter will in principle also deal with the property. Without a choice of law, the law of the spouses’ first common habitual residence after the marriage applies; failing that, the law of their common nationality; and failing that, the law of the state with which they jointly have the closest connection.

This decides, for example, whether the Dutch statutory regime applies. For marriages from 1 January 2018 that is a limited community of property; for older marriages it is usually a general community of property. A foreign system can work out very differently for your assets.

Gịnị ka anyị nwere ike imere gị gbasara ịgba alụkwaghịm mba ụwa?

We act for expats and internationally married couples; more about our work is on our ọkàiwu ịgba alụkwaghịm page.

• We check which courts are competent and whether filing first in the Netherlands is in your interest.
• We determine which law applies to the divorce, the property and maintenance.
• We draft and file the divorce application with the District Court.
• We draft a divorce settlement and, where children are involved, a parenting plan.
• We arrange registration of the divorce within the six-month period.
• We map out the consequences for your residence permit with the IND.

Summary

• Jurisdiction for a divorce in the EU follows Brussels II-ter; several courts can be competent and the court seised first takes the case.
• The Netherlands does not apply Rome III; a Dutch court in principle applies Dutch divorce law under Book 10 BW.
• Living abroad, you can still divorce in the Netherlands in some cases, for example if both spouses are Dutch.
• For marriages from 29 January 2019, Regulation (EU) 2016/1103 decides which law governs your matrimonial property.
• A Dutch divorce must be registered within six months after the decision becomes final.

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