Which law applies in an international divorce?

What does applicable law mean?

The applicable law is the national legal system used to assess your divorce and related issues.

This can relate to:

• the divorce itself
• spousal alimony and child alimony
• matrimonial property law
• pension rights
• prenuptial agreements and set-off clauses

In international situations, it is possible for a Dutch court to apply French or German law, or for a foreign court to conclude that Dutch law applies. Jurisdiction and applicable law are legally entirely separate questions.

When does Dutch law apply?

In many cases, Dutch law applies when:

• both spouses have their habitual residence in the Netherlands
• parties have made no other choice of law
• international conflict rules refer to Dutch law

Yet this is not a given. In international marriages, foreign law may continue to apply, even when you have been living in the Netherlands for a considerable time.

When can foreign law apply?

Foreign law may be applicable when:

• you or your partner has a different nationality
• you lived in another country after the marriage
• you have made a choice of law in prenuptial agreements
• European regulations or international conflict rules determine this

This plays an especially important role in matrimonial property law. The law of the country where you had your first joint habitual residence after the marriage can be decisive for the division of assets.

Applicable law and matrimonial property law

For international couples, matrimonial property law is often the most complex part. The question of which law governs the division of assets depends on several factors:

• the date of the marriage
• the place of the marriage
• the country of the first joint habitual residence
• any choice of law in prenuptial agreements
• subsequent moves

It can happen that Dutch law applies to the divorce, but foreign law applies to the division of assets. This can have significant consequences for:

• the scope of the community of property
• the operation of set-off clauses
• the treatment of business assets
• foreign real estate

You can read more about international divorce at international divorce.

Applicable law and spousal maintenance

Different rules may apply to spousal alimony than to the divorce or property law. International rules determine which law is applied to:

• the amount of the alimony
• the duration and the possibilities for modification
• the enforceability in another country

Depending on the circumstances, this can have significant consequences for the outcome. It is wise to analyze this in advance, not just during negotiations.

Choice of law: can you determine which law applies yourself?

In some situations, spouses can make a choice of law in advance, for example in prenuptial agreements or in a separate agreement.

A choice of law can:

• provide clarity on the future division of assets
• limit future conflicts regarding applicable law
• reduce international uncertainty

A choice of law must meet legal requirements. Not every choice is automatically valid, and the consequences can differ for each part of the divorce.

Concurrence of jurisdiction and applicable law

It regularly happens that the Netherlands has jurisdiction, but foreign law applies, or vice versa. Both questions must be answered separately before the substantive analysis can begin.

You can read more about jurisdiction at which court has jurisdiction in an international divorce.

For guidance on international files, read more about the working method of our international family law lawyer.

Practical scenarios

1. Dutch and French nationality

A couple with dual nationality lives in the Netherlands. The Dutch court has jurisdiction. Nevertheless, French matrimonial property law turns out to be applicable due to the first joint residence after the marriage.

In such situations, the division of assets can differ significantly from what parties expected based on their current place of residence. Prior insight into the applicable law prevents surprises.

2. Expat on temporary assignment

A couple is staying temporarily in the Netherlands on the basis of an expat contract, but had their first joint residence in another country.

Although the Netherlands may have jurisdiction for the proceedings, the matrimonial property law of that other country may continue to apply. You can read more about this situation at divorcing as an expat in the Netherlands.

How do we assess the applicable law?

We analyze, among other things:

1. nationalities of both parties
2. place and date of the marriage
3. first joint habitual residence after the marriage
4. subsequent moves and residential history
5. content of prenuptial agreements and any choices of law
6. relevant European regulations, including Rome III and the Matrimonial Property Regimes Regulation

We then discuss which law is likely to apply and what consequences this has for your position. Would you like to have a situation assessed? Schedule a consultation or request a second opinion if you already have guidance elsewhere.

Case Example

We assisted a client in a divorce where the partner had a different nationality and the marriage was concluded abroad. The first joint residence after the marriage was not in the Netherlands. After analysis, foreign matrimonial property law proved to be applicable to the division of the joint assets, while the Dutch court had jurisdiction for the proceedings. By mapping this out in advance, the negotiations on the division of assets could be conducted on the correct legal basis.

Written by the team at Simmelink, specialists in international family law.