Which law applies in an international divorce?

What does “applicable law” mean?

The applicable law is the national law used to assess your divorce and ancillary proceedings.

This can relate to:

• the divorce itself
• spousal maintenance
• matrimonial property law
• pension rights
• prenuptial agreements

In international situations, it is possible that:

• a Dutch court applies French law
• a German court applies Dutch law

Jurisdiction and applicable law are legally distinct questions.

When does Dutch law apply?

In many cases, Dutch law applies when:

• both spouses have their habitual residence in the Netherlands;
• the parties have not made a different choice of law;
• international rules refer to Dutch law.

However, this is not a given. In international marriages, foreign law may remain applicable, even when you live in the Netherlands.

When can foreign law apply?

Foreign law may be applicable when:

• you or your partner have a different nationality;
• you lived in another country after the marriage;
• you have made a choice of law in a prenuptial agreement;
• international regulations or conflict-of-law rules dictate so.

This plays a particularly important role in matrimonial property law. For example, the law of the country where you had your first habitual residence after the marriage may be decisive.

Applicable law and matrimonial property law

Matrimonial property law is often complex for international couples.

Factors of importance may include:

• the date of marriage
• the place of marriage
• the country of the first joint residence
• any choice of law
• subsequent moves

It can happen that Dutch law applies to the divorce, but foreign law applies to the division of assets.

This can influence:

• community of property
• settlement clauses
• business assets
• foreign real estate

You can read more about international divorce at:
https://simmelink.nl/familierecht/internationaal/echtscheiding/

Applicable law and spousal maintenance

Different rules may apply to spousal maintenance than to the divorce itself.

International rules can determine which law is applied to:

• the amount of maintenance
• the duration of maintenance
• possibilities for modification

This can vary by country. Depending on the circumstances, this can have significant consequences for the outcome.

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 a prenuptial agreement.

A choice of law can:

• provide clarity
• limit future conflicts
• reduce international uncertainty

However, a choice of law must meet legal requirements. Not every choice is automatically valid.

Concurrence of jurisdiction and applicable law

It frequently occurs that:

• the Netherlands has jurisdiction
• but foreign law is applicable

Or vice versa.

Therefore, it is important to analyze both questions separately.

For guidance on international cases, read more about our international divorce lawyer:
https://simmelink.nl/familierecht/internationaal/echtscheidingsadvocaat/

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 a previous place of residence.

In such situations, the division of assets can differ significantly from what the parties expect.

2. Expat on temporary assignment

An expat couple resides temporarily in the Netherlands, but had their first joint residence in another country before the marriage.

Although the Netherlands may have jurisdiction, the matrimonial property law of that other country may remain applicable.

You can read more about divorcing as an expat at:
https://simmelink.nl/familierecht/internationaal/scheiden-als-expat/

How do we assess the applicable law?

We analyze, among other things:

• nationalities of both parties
• place of marriage
• first joint residence
• subsequent moves
• prenuptial agreements and choices of law
• relevant European regulations

We then discuss which law is likely to apply and what consequences this has for your position.

International analysis requires care and experience.

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